Enemy legislation and judgments in Jersey

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This article by C W Duret-Aubin, Attorney-General, was first published in the 1950 Annual Bulletin of La Société Jersiaise

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The Armed Forces of Germany entered into effective military occupation of the Channel Islands in 1940, Guernsey being occupied on 30 June and Jersey on 1 July of that year. The occupation continued until the Liberation of the Islands by the Armed Forces of the Crown on 9 May 1945.

Promulgation

On 8 July 1940 the German Commandant in Jersey, promulgated, on behalf of the German Commandant in the Channel Islands, certain orders which contained, inter alia, the following provisions:

"The Civil Government and Courts of the Island will continue to function as heretofore save that all Laws, Ordinances, Regulations and Orders will be submitted to the German Commandant before being enacted.
"Such legislation as, in the past, required the sanction of His Britannic Majesty in Council for its validity, shall henceforth be valid on being approved by the German Commandant and thereafter sanctioned by the Bailiff of Jersey.
"The orders of the German Commandant heretofore now and hereafter issued shall in due course be registered in the records of the Island of Jersey in order that no person may plead ignorance thereof.
"Offences against the same, saving those punishable under German Military Law, shall be punishable by the Civil Courts, who shall enact suitable penalties in respect of such offences with the approval of the German Commandant."

(The Royal Court of Jersey, by Act of 24 August 1940, enacted a penalty of imprisonment, with or without hard labour, not exceeding two years or of a fme not exceeding £500 or of either, or both, of those penalties.)

Occupation legislation

During the whole of the Occupation, therefore, two main streams of legislation flowed:

  • Enactments of the Insular legislature (ie the Assembly of the States), and of Insular authorities upon which delegated authority was conferred by the States, and
    • The Military Commandant in Jersey or in the Channel Islands
    • The Field Commandant in the Channel Islands
    • The Military Commander-in-Chief in North-West France. (The Occupying Authority treated the Channel Isles as being, for administrative purposes, within the Zonal area of North-West France.)

Upon the Liberation of the Island it became necessary to regularise the position in so far as Occupation legislation, which would normally have required the Royal Assent, was concerned and by the Confirmation of Laws (Jersey) Law, 1945, sanctioned by Order of His Majesty in Council of 14 August 1945, it was provided that 46 such enactments should be deemed always to have had effect as if the assent of His Majesty had been signified thereto, and to have been duly registered accordingly on the dates of their original registration by the Royal Court.

In so far as delegated legislation was concerned, an entirely unexpected position presented itself to the Insular Authorities upon Liberation. Practically the whole of that class of legislation consisted of Orders made by various Competent Authorities under Regulation 55 of the Defence (Jersey) Regulations, 1939. Those Regulations had been made by the States of Jersey in exercise of the powers vested in them by the Emergency Powers (Jersey Defence) Order in Council, 1939, which extended to the Island of Jersey certain of the provisions of the Emergency Powers (Defence) Act, 1939.

Upon Liberation it was learned that His Majesty had been pleased:

  • By the Emergency Powers (Channel Islands) Order in Council, 1941 (made on 15 August 1941) to revoke the Emergency Powers (Jersey Defence) Order in Council, 1939, and
  • By the Emergency (Channel Islands) Order in Council, 1944 (made on 18 May 1944) to re-extend certain of the provisions of the Emergency Powers (Defence) Act, 1939, to the Channel Islands, substituting for the States, as the general authority empowered to make Defence Regulations, the officer for the time being in command of the Armed Forces in the Channel Islands. Provision was, however, made for Regulations applying only to the Islands to be made by the respective States, subject to the approval and the power of variation and reservation of the said officer.

No action was taken to confirm Orders made under the Defence (Jersey) Regulations, 1939, after the date (15 August 1941) of the revocation of the Emergency Powers (Jersey Defence) Order in Council, 1939, the view being taken that all such orders, having been submitted to and approved by the German Commandant under the provisions of the German Order of 8 July 1940, were, in effect, orders of the Occupying Authority and as such valid and effective during the Occupation.

It was, however, necessary to validate as from the date of Liberation, as many of the Orders made between 15 August 1941, and9 May 1945, as remained of practical importance and, therefore, on 13 June 1945, the Officer Commanding the Armed Forces, Channel Islands, made a Defence Regulation providing that such Orders should have effect as if the same had been made by the Competent Military Authority under Regulation 55 of the Defence (Channel Islands) Regulations, 1944.

No action was taken to nullify the mass of orders made by the Occupying Authority, the view being taken that their validity automatically lapsed with the termination of the Occupation.

Subsequently, by the Emergency Powers (Jersey) Order in Council, 1945, of 14 August 1945, the status quo ante was entirely restored; the Emergency Powers (Channel Islands) Order in Council, 1944, being expressed to cease to have effect on 25 August 1945, as from which date the States were once again made the Authority empowered to make Defence Regulations.

Two cases

In only two cases have the Insular Courts been called upon to consider the validity of legislation enacted during the Occupation.

  • In His Majesty's Attorney General v Houillebecq (J R) (1945.31 PC 174.13 CR59) it was held that the Specified Materials (Control and Use) (Jersey) Order, 1941, an Order made by the Superior Council of the States in compliance with a direction of the German Field Commandant was, because of that direction, intra vires the Superior Council and that the Order, which was approved by the German Field Commandant and duly registered by the Royal Court, was therefore valid and effectual.
  • In Dupre v Attorney of Barclays Bank Limited, Babillon cited. (1947) 243 Ex96; 210, a Currency Order (which, inter alia, prohibited certain stock exchange transactions) made by the Occupying Authority on 1 August 1942, and duly registered by the Royal Court on 12 December 1942, was held to have been intra vires the Occupying Authority and, therefore, valid and effectual.

No law changes

During the whole of the Occupation the substantive law applied in the administration of criminal and civil justice by the Insular Courts was the law as it was before the Occupation. Legislative measures taken by the Occupying Authority effected no change in the civil and criminal law of the Island and in the result, therefore, the Judgments of the Insular Courts pronounced during the Occupation were, upon Liberation, accepted as valid and binding.

With the exception of certain infractions of minor German orders (eg Curfew) with which the German Field Commandant directed the Insular Courts to deal, all infractions of German Orders were dealt with by German Courts.

All breaches of the Insular law other than those committed by German or Italian nationals, were dealt with by the Insular Courts.

Certain sentences for offences not connected with the Occupation were, following Liberation, revised in so far as sentence was concerned.

No question arose after Liberation regarding the validity of German convictions, whether of a political or of a non-political character, the German Commandant having released from German custody, some 36 hours before Liberation, all civilian prisoners serving German sentences.

Order disregarded

During the Occupation judgments were rendered by the Courts in the name of the King. The Field Commandant did at one time direct that all criminal prosecutions ordinarily instituted in the name of His Majesty's Attorney-General should, in future, be instituted in that of the Attorney-General without reference to His Majesty. The Order was, however, disregarded and the normal practice was maintained throughout the Occupation.

No special tribunals were set up by or under pressure of the Occupying Authority for the purpose of dealing with breaches of regulations made with regard to the economic life of the country. Such breaches of that kind as were established were dealt with by the Insular or the German Courts according to whether the infraction alleged was of an Insular or of a German enactment.

The evacuation from the Island prior to the Occupation of some 25 per cent of the civil population made it necessary to prolong periods of prescription and on 29 April 1944, the States enacted the Law (1944) concerning Prescription, which provided for the suspension of prescription against any person who, owing to exceptional circumstances arising directly or indirectly out of the War, was unable to take effective steps to protect his interests in the Island. The law was expressed to have retroactive effect as from 20 June 1940, which was the date of the evacuation of the Island. This Law was one of those Occupation laws in relation to which the position was regularised by the Confirmation of Laws (Jersey) Laws, I945.

German currency

The Occupying Authority introduced German currency notes immediately upon the Occupation primarily for its transactions with the civilian population.

The rate of exchange between the Reichsmark and the pound was, by the Order of 8 July 1940, first fixed at eight marks to the £. On 13 July I940, the rate was changed to seven marks to the £, on 2 September I940, to 9.60 marks to the £, and finally on 28 September 1942, to 9.36 marks to the £. It remained at the latter rate for the remainder of the Occupation.

For some considerable time following the Occupation of the Island, British Currency and Reichsmarks were in circulation side by side but by the end of I942 the lawful currency had virtually disappeared. It remained hidden or hoarded and, after that date, was scarcely seen in circulation. The Insular Authorities were allowed by the Occupying Authority to issue local notes to a strictly limited extent, but during the last two years of the Occupation most transactions were conducted in Reichsmarks and it was feared that if, after the Occupation, that currency were treated as worthless or of little value disputes might well arise out of many financial operations which took place during the Occupation. In the event, however, no such disputes arose because His Majesty's Treasury authorised the banks, from the date of Liberation up to 23 May 1945, when German currency of any description ceased to be legal tender in Jersey, to accept all Reichsmarks in circulation in the Island at the time of Liberation and to pay for them in sterling at the rate current at the moment of Liberation, that is to say, 9.36 Reichsmarks to the £.

In these circumstances no difficulties arose regarding the payment of pre-Occupation debts, the discharge of pre-Occupation bonds, bills of exchange and other obligations and the redemption of pre-Occupation mortgages in Occupation currency, all such transactions having been treated as valid.

Stolen property

One result of the evacuation, which took place immediately before the Occupation, was that owners of movable property left their property open to appropriation by persons having no right thereto. Moreover, individual members of the Occupying Forces in many cases seized goods and other movable property and later transferred them to others. During the Occupation the Insular Authorities made provision for the collection and storage of movable property belonging to evacuees and, in that way, a large quantity was preserved for the lawful owners. The Occupying Authority, however, made heavy requisitions and much of the protected property passed into German hands, nominally for use within the Island. A great deal of it was, however, exported from the Island or destroyed. The tracing of movable property, whether requisitioned without payment by the Occupying Authority or stolen or unlawfully confiscated by members of the Occupying Forces, gave rise to enormous difficulties after Liberation but, whenever any such property was found and identified, the holders thereof were not regarded as possessing a valid title to it.

As previously stated, the validity of the legal measures of the Occupying Authority has been considered by the Courts only in the two cases cited, but it can be accepted that the provisions of the Regulations annexed to the Hague Convention IV of 1907 (Section III), Military Authority over the Territory of the Hostile State, have been generally adopted by the Insular Government as the test of the validity of the legal measures adopted and other action taken by the Occupying Authority during the Occupation.

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