Many people assume that if someone is drunk in public and behaving badly, they will automatically be guilty of being drunk and disorderly.

The law is more precise than that.

The offence requires more than intoxication, more than bad manners and more than being difficult to deal with. Recent proceedings in the Magistrate’s Court, in which our client was acquitted, serve as a useful reminder that there remains an important distinction between behaviour that is unattractive and behaviour that is criminal.

The offence

To prove a charge of being drunk and disorderly, the prosecution must establish both that:

1. the defendant was drunk; and
2. the defendant’s conduct was disorderly.

The first question is often relatively straightforward. The second is frequently where the real issue lies.

The Courts have repeatedly recognised that disorderly conduct is not established simply because a person has consumed alcohol, is argumentative, uses offensive language or refuses to accept what they are being told.

There must be conduct which crosses the threshold into genuine disorder.

What does ‘disorderly’ mean?

The authorities make clear that the Court is concerned with the nature and effect of the behaviour.

Examples which may point towards disorderly conduct include:

• shouting, screaming or creating a disturbance in a public place;
• conduct which causes alarm or distress to members of the public;
• behaviour likely to provoke violence or a breach of the peace;
• obvious loss of self-control or coordination affecting those around the individual.

The question is ultimately an objective one. The Court must consider what actually occurred and whether the conduct was sufficiently serious to amount to disorderly behaviour in law.

What might not be enough?

Cases of this sort often include allegations that a person was:

• argumentative with police officers;
• refusing to accept directions or advice;
• swearing;
• talking over others;
• belligerent or confrontational;
• generally unpleasant to deal with.

Such behaviour may be irritating. It may make an officer’s job more difficult. It may even justify police intervention in certain circumstances. However, behaviour of this sort does not always, without more, establish the offence.

The criminal law does not punish a poor attitude. Nor does it punish every instance of drunken foolishness.

There remains a distinction between conduct that is objectionable and conduct that is disorderly.

The importance of context

When considering whether behaviour is disorderly, the Court will look closely at the surrounding circumstances.

• Was anyone actually alarmed?
• Were members of the public affected?
• Was there any realistic prospect of violence or a breach of the peace?

Did the individual lose control of their actions to such an extent that public order was genuinely affected?

These are often the questions that determine the outcome of a case.

It is not uncommon for the prosecution to prove intoxication but struggle to establish the additional element of disorderliness. However, the line between ‘difficult’ and ‘disorderly’ is a fine one, easily overstepped when intoxicated.

Why this matters

The offence plays an important role in protecting public order. Equally, it is important that the boundaries of the offence are respected.

If being drunk, argumentative or rude were enough on their own, the offence would extend far beyond its intended scope.

The Courts have therefore continued to require proof of conduct that genuinely affects public order, rather than simply behaviour that is annoying, offensive or embarrassing.

That distinction can be easy to overlook in the heat of an incident, but it remains central to the proper application of the law.

Final thoughts

Every case turns on its own facts. What amounts to disorderly conduct in one situation may not do so in another.

The important point is that the offence requires more than intoxication and more than poor behaviour. The prosecution must prove conduct that objectively crosses the threshold into disorder.

That remains an important safeguard, both for the public and for the proper administration of justice.

Important update: Deputy Tom Binet has agreed a “prescription amnesty” with Government of Jersey insurers until 2027. Prescription is a substantive rule of law which extinguishes certain rights and obligations after the applicable time period. This means that after that period, the right or obligation ceases to exist, and is not simply unenforceable.

The applicable time period for clinical negligence claims in Jersey is 3 years and it is important that your claim is issued before prescription passes.

Benest & Syvret has “no win no fee” arrangements with its clients and is seeing more clients moving to us to join our group action against the Government of Jersey. 

We do not seek any upfront payments from our clients who are eligible to join the group action.

Please call 875875 to speak with our team.

The Health and Community Services, Government of Jersey issued a report prepared by the Royal College of Physicians (RCP) on 22nd January,  2024 including findings relating to the review of patients who received rheumatology care between January 2019 and December 2021. 

The RCP found the standard of care to be well below what the review team considers acceptable for a contemporary rheumatological service. Several areas of concern and potential areas for improvement were identified by the RCP review including:

• Little evidence to support a relevant history having been taken, and in particular a lack of reference to disease activity scoring. Without documentation of disease activity, it was difficult to understand the extent of patient’s disease and therefore justifications for treatment.
• No evidence of clinical examination and little evidence of standard immunological investigations giving rise to the potential for inconclusive diagnosis having been given to patients.
• A lack of relevant imaging to support diagnoses. For example, the review team found in several cases patients were diagnosed and started on medications without a magnetic resonance imaging (MRI) scan having been conducted to confirm the diagnosis.
• Limited, and often absent, handwritten evidence of the clinical interaction with the patients. The professional opinion for each case was documented in a typed letter. These letters were brief and generally uninformative. They often failed to mention the diagnosis, rarely mentioned any relevant clinical findings and lacked therapeutic information, past or current. Due to this, the review team found it difficult to understand the clinical decision making.
• Despite a lack of clear diagnosis, biologic agents were prescribed, with frequent and multiple changes. For example, a case was reviewed where a patient had been diagnosed with Inflammatory arthritis (IA) although an ultrasound scan had shown no evidence of active synovitis. Despite this, the patient was started on treatment with biologics.
• In the majority of cases reviewed, patients were often initiated on biologics and switched therapies frequently without having an adequate time to determine efficacy. In some of the cases patients were treated with five or more biologics within a short period of time and in many cases prescribing was outside both UK and European guidance.

The RCP felt obliged to write an interim letter to Dr Patrick Armstrong, medical director (dated 24 March 2023) expressing a view that the two consultants should not work independently in providing rheumatology care until such time that the review and other local processes were complete. In addition, a recommendation was made for an audit to be commenced of those patients currently on biologics to assure that their diagnoses were secure.

The RCP review will no doubt result in consideration of legal proceedings by persons who received rheumatology care during the relevant period.

Benest & Syvret are committed to assisting any person injured as a result of medical negligence. If you have been effected by any of these matters, contact Darry Robinson on 875875 or via email  info@benestsyvret.com to discuss a potential compensation claim.

Read more about the rheumatology scandal.

GOVERNMENT OPENS A NEW FRONT IN THE WAR ON LANDLORDS

“It has become axiomatic that all landlords are bastards – selfish, greedy bastards who should be content with owning one property but, determined to spite the sainted poor, gobble up loads of properties to make themselves even more money.”

So said the columnist Rod Liddle  the other week when considering the clobbering that landlords are facing from the UK Government.  Sadly, it seems that our own Government here in Jersey is intent on following Angela Rayner’s policies without proper consideration of the consequences, nor indeed the very different micro economic climate that Jersey represents.

In the last year or so, we have seen stamp duty rates for buy to let purchases sky rocket.  In addition, Landlords are now required to be bestowed a licence by Government to let their property out.  The justification for the licencing process was so that the Government could enforce standards in respect of rental properties, even though those standards have not yet been set or published.  

Yet more clobbering is coming.  Shortly, the requirement for energy performance certificates (EPCs) for rental properties will come into force.  From 1 January 2026 all properties sold or starting new lease agreements will require an EPC and from January 2028, minimum energy performance standards will be applied.  Many homes presently let and occupied by tenants who are entirely content with the present condition of their homes, will simply be unable to fulfil those requirements, particularly older properties which are subject to heritage planning restrictions.

Also coming down the line is the restriction on no fault evictions.  That will make it impossible for landlords to sling out a tenant who does not pay their rent on time, treats the property or their neighbours with contempt, or even runs a cannabis farm in the attic.  

As a consequence, new landlords have disappeared from the market in the last two years.  The eyewatering stamp duty on acquisition of a new rental unit means that the figures simply do not stack up.

Those landlords already in the market are now faced with a decision to run for the door or face the crippling cost of compliance with the regulations, the risk of rental gaps and non-payment of rental, or, in due course, the inability to get rid of dodgy tenants.

One would have thought then that our Government had deployed all of the weapons that it had in its war on landlords.  Not so.  Last week Deputy Andrews lodged a proposition proposing that from 1 January 2028, Capital Gains Tax of 20% should be applied on the sale of residential property purchased after that date where it was purchased as a buy to let property.

Deputy Andrews expressly says in his proposition that he intends to disincentivise rental investors from entering the housing market.  He thinks this will create ‘more opportunities for first time buyers to buy a home on the open market’.  He is right on the first point.  He is completely wrong on the second.

The increase in stamp duty has significantly reduced new investment in rental properties – there is no evidence whatsoever however to support a conclusion that this has benefited first time buyers.

Landlords have seen the direction of travel.  Increases in regulation started a flow of Landlords to the exit door.  The prospect of licencing requirements increased that flow and when the regulations are, finally, delivered and EPCs become a requirement that flow will only increase.  Add the prospect of the closure of the path to exit a property investment by way of punitive tax on sales or the requirement to retain a generally unacceptable tenant because of a ban on unforced evictions, then the problem for the rental market is at large.

As the supply of the private rented sector shrinks, then inevitably rents will rise.  Inevitably, that will hit the lowest earners in our community as well as contributing to inflation.  

Deputy Andrews’ proposition in the midst of this might politely be said to be unhelpful.  Those less polite than me might suggest that it is daft.  Jersey’s reputation as a stable low tax environment is important.  A challenge to the imposition of the buy to let stamp duty remains before the Courts because of the Government’s failure to implement that properly.  The proposed new tax will be fraught with all the usual difficulties that attach to calculation of a Capital Gains Levy.

The proposed tax is wholly inconsistent with Jersey’s longstanding tax regime which has always eschewed a tax on Capital Gains.  That approach has nurtured long term investments by local entrepreneurs and the arrival of wealthy individuals who rely on the consistent and stable approach to tax which Jersey has provided.  In addition, selecting one type of investment for a Capital Gains attack is grossly unfair.

Our housing crisis is one of affordability, not one of supply.  If our Ministers are intent on solving that, they should be nurturing private landlords not waging war on them.  A moderate programme of regulation of standards is acceptable but the repeated brick bats being thrown at landlords will mean a reduction in private rental supply, with the consequence of greater reliance on Government funded housing units and rental subsidy.  

Whilst bashing those who appear to be greedy capitalist bastards might seem like a good idea for the immediate popular vote, the current assaults on landlords need to be substantially rethought.  

Philip Syvret is a Solicitor at Benest & Syvret.  He heads up the property team and has advised in the acquisition, construction and disposal of some of the Island’s largest residential developments.  

Contact philip.syvret@benestsyvret.com or via 706670.

Eligibility

To be eligible, applicants must;

• be genuine first-time buyers
• provide a minimum of 5% deposit
• select properties that are on the open market
• not select new builds
• select properties that have been previously occupied
• do not exceed specific maximum purchase prices, which vary based on the property type

The program will roll out in three tranches in 2024, each offering around £3 million in loans, requiring applicants to reapply with up-to-date financial information for each tranche.

Supported by major Jersey mortgage lenders and brokers, the scheme requires applicants to submit various financial documents for application, with the process including a review against eligibility criteria and prioritization for loan awards.

As Jersey continues the clearing from all the damage that Storm Ciaran caused, Philip Syvret considers the impact of climate change for homebuyers, which may be more than just the risk of further storm damage.

I’ll wager that the effects of climate change are not at the top of the list of concerns for many looking to purchase a home in Jersey. Increasing intensity of climate events around the world are, however, a reminder of the potential difficulties to be faced in years to come.

What is presently a peripheral concern to homebuyers is, however, a matter on which our Government is heavily focussed. We are all now signed up to a carbon neutral strategy with a view to the whole Island being carbon neutral in a little over 25 years. 

To get to that position there will have to be some serious adjustments in all aspects of our lives. The way we own and occupy our homes will be part of that. Everyone involved in buying or selling property will have to adjust their viewpoints accordingly.

As a property lawyer, I need to advise my clients in all aspects of a commercial or residential purchase. I consider title deeds, regulations imposed by government and physical aspects of the property. Increasingly, alongside selling agents, surveyors and lending banks, I have to consider the wider impact of global change. 

It’s an area which all involved in real estate work are focused on. At the recent PWC Channel Islands Real Estate Conference nearly half of 150 industry professions indicated in their response to a survey that ESG (Environmental, Social and Governance) issues were the area that would have the biggest impact on the real estate industry in the medium (3 to 5 year) term.

An example of the carbon neutral strategy is the imposition of energy performance certificates (EPCs). That certificate tells you how energy efficient a building is. These certificates have been used in the UK for some years but will be new to Jersey. Legislation is awaited but it may well be that by 2025 you will not be able to sell a house unless you provide the buyer with an EPC. In the future it may not even be possible to sell or rent property at all unless the EPC shows that the Property is above a minimum standard.

It’s not just regulatory impact that we need to consider. Climate change brings a risk of weather extremes. In Jersey, that can mean violent storms, headland gorse fires or rising sea levels. We have seen in recent months the risk that storms can have for coastal properties. Flooding in Grands Vaux and other areas have hit the headlines in the last year. Sea wall enhancements at Beaumont and other areas have had to be implemented. Those physical risks need to be considered by any buyer.

An increased risk of physical damage leads to the secondary risk of an inability to insure. The wildfires in Australia seem a distant threat to these shores, but as a consequence of climate change, insurance costs in New South Wales have sky rocketed and some 11% of properties are uninsured because of those driven rates. 

If it becomes impossible or unaffordable to insure a property which lies on the coast next to a rising sea or in a valley at risk of flooding, the property will also become unmortgageable. 

The ability of a buyer to secure a mortgage on a property of course underwrites its value. High street lending institutions are looking very carefully at the impact of climate change on the real estate market. They are, after all, making loans on a daily basis which will last for 30 to 40 years, underwritten by expectations of the sustained value of the property that they are funding. 

In a lending market that is already constrained by strict financial stress testing, I have little doubt that increasingly we are going to see lenders taking a view on climate change impacts. The impacts that they will consider will be wide-ranging. Is the Property at risk of physical damage if storm, flood or fire risks increase in decades to come? Will the Property become uninsurable as a consequence? Will the owner be able to afford to insure? If EPCs or other directives are issued by government for energy efficiency, will the owner be able to afford to meet the costs of retro-fitting to meet requirements? 

If these are factors that the bank will consider and then they are factors which any buyer will necessarily need to consider also.

As I drive past the tree surgeons clearing the roads and the roofing contractors patching the tiles after Storm Ciaran, I am particularly conscious therefore that we are in a period of significant change. Whilst we must all do what we can to contribute to the carbon neutral policy, any property investment now will need to take a long term view as to how the climate and consequential regulatory framework might change over the years. 

Philip Syvret is one of the Island’s most experienced Property lawyers. He advises on all types of residential and commercial purchases, as well as private and commercial lenders.
He can be contacted via philip.syvret@benestsyvret.com or on 706670.

Almost certainly your mortgage will be the largest financial commitment you take on during your lifetime. It is a commitment that will last for many years. It will affect the home you can live in and the lifestyle you can lead. It is important to get the arrangements right.

Given that most people will only take one or two mortgages during their entire lifetime, here’s some of the questions you should ask your mortgage adviser when looking to take out a loan.

What is the maximum amount I can borrow?

The way in which the maximum amount of a loan is calculated varies between different banks and lenders. All lenders will however use a formula combining income multiples together with an assessment of your income and outgoings so as to determine your borrowing capacity.

In recent years, and in particular since the financial crisis in 2008, banks have applied a stress-testing process. They look not only the affordability of the mortgage for you in your present circumstances, but also if income was diminished in some way or the interest rate went up during the term of the loan. 

When asking how much you can borrow, you should also ask how that amount is calculated so you can ensure you maximise your borrowing capacity.

What different types of mortgages are available?

There are numerous different mortgage types, (sometimes called mortgage products), from which you can choose depending on your circumstances. The most common is a repayment mortgage whereby you make monthly payments, part of which discharges the interest on the mortgage and part of which repays the capital. At the end of the period of the mortgage, the whole capital amount would be repaid.

Some lenders offer interest-only mortgages. As the name suggests you only pay interest due on the capital amount each month, but no capital repayment is made. At the end of the mortgage term, the whole of the capital remains due. This kind of mortgage is really only suitable for short-term ownership, where for example, the property is to be renovated and sold on.

The manner in which interest is charged differs from product to product. A variable mortgage will have an interest rate which is fixed by the lending bank from time to time during the loan. The rate can charge upwards or downwards at any time of the bank’s choosing.

Alternatively, the interest rate can be fixed, usually for a period of two, five or even ten years. You will have certainty as to the rate that you will be paying, protected from any upward change, but you would not be able to take advantage of any downward change in market interest rates from time to time.

A Tracker Mortgage has an interest rate which is generally at a fixed percentage above the Bank of England base lending rate and will track that rate from time to time. The rate can therefore go up or down.

The quantum of the interest rate and the type of mortgage product available to you will vary depending on the amount of the deposit that you are putting down to purchase the property. In general terms, the bigger the deposit, the wider range of products available to you and the cheaper the interest rate.

A good mortgage adviser will ask detailed questions about your plans so that the product best suited to your needs can be chosen.

What are the penalties for paying off a loan early?

If you take out a mortgage with a fixed or tracker rate or a discounted interest rate, then you will undoubtedly be subject to an early repayment charge. Usually these charges are calculated by reference to a formula referring to a percentage of the capital amount to be repaid and the years left in the mortgage.

You should get a clear understanding of any early repayment charge or similar penalty as the amounts due can be very significant indeed. Whilst you may plan to live in the house for many years to come, life does not always run in a straight line. A forced sale of the house and repayment of the mortgage before the fixed term of the interest rate has expired could give rise to a hefty penalty.

As you discuss different types of mortgage products you should enquiry as to any penalties that apply.

Is it possible to over-pay the mortgage?

Over-paying a mortgage means paying an additional capital amount so as to reduce the time it takes to pay the mortgage off. While many mortgages include early repayment penalties, many will allow you to make a minor over-payment without paying any additional fee or penalty.

This could be important if, for example, your income is irregular or you have bonus payments which you would like to apply to the mortgage. A discussion in relation to that aspect will make sure that you have the right product available to you.

Do I need life insurance?

It might be appropriate to take life insurance in the amount of the mortgage. A straight life cover on the life of yourself and your partner will mean that you have a lump sum to pay the mortgage off if either of you passed away.

Again, there are different types of products which might be suitable. Decreasing term cover will reduce the amount of the lump sum you have on the death of either party to the mortgage in correlation with the reduction of the mortgage as you pay capital down over the years. 

Equally, you might combine life insurance with critical illness cover. If you or your partner suffer a critical illness as defined under the policy, the lump sum will be payable meaning the mortgage can be paid off. That would be important for example if one of the breadwinners in the family was unable to work and therefore the mortgage repayments could not otherwise be met. A mortgage adviser will usually be allied to an insurance broker who would be able to advise you what kind of insurance would be appropriate.

What documents are required?

The application for a mortgage is invariably a heavily documented process. All banks will require proof of your name and identity so as to comply with money laundering regulations.

You will also need to demonstrate your income. More than likely you will be asked to provide copies of your bank statements and credit card bills for at least the last three months, together with pay slips and income tax assessments.

Early enquiry of your mortgage adviser as to what will be required will allow you to get a head start on gathering the necessary information.

What are the costs of arranging the mortgage?

The mortgage will have some up-front costs which you will need to discharge. The costs will include:

• Arrangement fee covering the bank’s administration costs of arranging the mortgage
• A rate booking fee, if you are selecting a fixed interest rate or similar
• Valuation survey fee, repaying the bank for the cost of the surveyor to assess the value of the property
• Bank’s lawyers’ fees to reimburse the bank for the cost of engaging lawyers to draw up the documents to secure the mortgage against the property

You should ask the mortgage adviser for a clear statement of the costs relating to the particular product that you are choosing.

Remember also that on registration of the loan when you buy the house, stamp duty of ½% of the amount borrowed plus £90 registration fee will be deducted from the amount of the loan that is advanced to you.

Key takeaways

Take these lists of questions with you as you go to your first meeting with your mortgage adviser. These will help to make sure that the biggest financial commitment you will make is set up on the right terms for you and your family.

______________________________

Abigail Watkins is a solicitor in the property team at Benest & Syvret, one of the busiest conveyancing teams in the Island. She advises home-buyers and people taking a mortgage on a daily basis and has over 30 years’ experience in the legal world. If you wish to discuss any aspect of mortgage arrangements, contact Abigail on 875875.