Wednesday, July 28, 2010
And Then There Was One- A skeleton Argument
J.A. Clyde Smith,Esq,Commissioner, and Jurats Le Breton and Clapham
This Judicial Review was between
Minister for Home Affairs -Respondent
The reason the Judicial review is important is because it deals with the original suspension and also states that the current Home Affairs Minister followed proper procedure. This Judicial Review does not state whether Graham Power is innocent or guilty but focuses on procedure.
What we don't have is what Senator Le Marquand uses in his argument relating to Graham Power getting a fair hearing by way of Disciplinary Proceedings. What I can be sure about is that he didn't say " I will stop all disciplinary proceedings and then hang him out to dry in the media via a nearly fully redacted Wiltshire Disciplinary Report" now I could be wrong on this.
All matters relating to the original suspension are very important as it is where it all began.
Now, i,m not sure how many of you have been fooled by the utter garbage that has been fed by the JEP these past couple of weeks but we can all sleep easy knowing our gleaming new Incinerator wont be short of rubbish to burn.
I for one do not fall for the PR Spin concerning APC David Warcup. I cant accept that a man who has spent his life in the force and who has dealt with many issues including Institutional Child Abuse and their Alleged Cover Up that he cant handle a backwater like Jersey. What we do have are issues surrounding the original suspension, issues that involve David Warcup and issues that are being investigated by Brian Napier QC.
There are parts in Graham Powers Skeleton Argument that relate to the Napier Investigation and don't appear here for obvious reasons and nor do I have them.
Just Some of the Issues
1.Warcup sent a letter to Bill Ogley on the 10th November 2008 with the Met Interim report attached. This set off a chain of letters that resulted in Graham Power being suspended.
a) The draft dates where before the 10th november. ( GP suspension review hearing which TLS fought like crazy to keep secret)
b) The Met sent over an 'Interim' review of Operation Rectangle which should never be used in suspension ( It was). This was sent over by Brian Sweeting of the 'Met', a report that he has denied sending in some quarters, and a matter that is being investigated by the IPCC. Did the Author of the Met Interim report authorize Sweeting to send it over?
c) Why didn't Warcup inform Ogley that this couldn't be used?
d) Graham Power gets pulled in on the 12th November and all procedures go out the window, along with, the note shredding sketch from Bill Ogley. He then gets suspended under 2.3.3 of the code ( very serious concerns)
e) The Met kick off about their report being used for suspension. ILM must remove all reference from it as he keeps Graham Power suspended
f) Graham Power remains suspended from a letter written by David Warcup concerning Operation Rectangle, this remained the case until ILM dropped all disciplinary hearings.
g) From the 12th November 2008 until July 28th 2010 Graham Power has been denied all chance of a fair and just hearing.
h) You do not have to be Brian Napier QC to realize we have a huge problem concerning the original suspension of Graham Power.
In the JEP dated Tuesday 27th July this little article nearly went unnoticed . Bottom of page 3
The Final report on the suspension of former police chief Graham Power is expected soon.
The Napier report focuses on procedure used in the suspension,the role that other senior officers played and the question whether procedural mistakes where made. It is understood that letter have been sent to some of those likely to be criticised by the report,which is being compiled by Brian Napier QC. The letters give those who are being criticised a final chance to put their side of the story and defend their actions. Professor Napier's report was originally eant to be published in early May, but it has been delayed.
( Looks like Terry le Main might have some others in class with him, oh hang on, Walker gone, Lewis gone,Critch ( HR) gone, Mick Gradwell gone, and yes Warcup has handed his notice in) when did those letters go out. Still the Chief Executive is still there, hang on surly not?)
'AND THEN THERE WAS ONE'
This is Graham Powers Skeleton argument for Judicial Review
THE SKELETON ARGUMENT
• On 12th November 2008 the applicant was suspended from his duties as Chief Officer of the States of Jersey Police by the former Minister for Home Affairs. Documents provided to the applicant in consequence of that suspension are at Tab 1. It should be noted that the documents make reference to the interim findings of a report by the Metropolitan Police. It has subsequently been agreed by the respondent that this report is withdrawn in respect of the matters subject of this application. This decision is recorded in the transcript of a subsequent suspension review meeting at Tab 3 (pages 65 and 73).
• On 13th February and 15th March 2009 the current Minister for Home Affairs held suspension review meetings attended by the applicant and his professional representative, Dr Timothy Brain, Chief Constable of Gloucestershire, who is the Chairman of the Chief Police Officers Staff Association (C.P.O.S.A.) Transcripts of those meetings are at Tab 2 and Tab 3. At the conclusion of the suspension review meetings the Minister decided to keep the suspension in place. It is the decision of the Minister on 5th March 2009 which is now subject to grounds 2 3 and 4 of the application.
• Presentation of evidence. The applicant is a litigant in person and has sought to set out the evidence in a readable manner, with supporting documents placed for the most part, in the order in which they appear in the main text. There are two affidavits enclosed both of which were sworn in support of applications to the Bailiff for a Judicial Review. Both make reference to appendices which were attached in connection with those applications. Now that the matter has progressed to a full hearing those documents which were in the appendices, and which remain relevant, are enclosed in this file in a revised order. It follows that the appendix references in the affidavits should now be ignored, and reference made instead to the documents identified in this skeleton argument.
THE APPLICANTS UNDERSTANDING OF THE NATURE OF A JUDICIAL REVIEW.
• The Applicant is a litigant in person. His understanding of the nature and parameters of a judicial review is based on personal research undertaken since the suspension was put in place.
• It is understood that a Judicial Review is a process which all parties are expected to approach in a relationship of mutual respect and cooperation with a view to achieving a common aim of the “maintenance of the highest standards of public administration,” (R v Lancashire County Council, Ex P Huddleston ) and to address any conduct by a public body which is “contrary to the spirit of fair dealing which should inspire the whole of public life.” (R v Inland Revenue Commissioners, ex p Matrix-Securities Ltd ). Public Bodies have a “duty to act fairly in accordance with the highest public standards.” (R v Inland Revenue Commissioners, ex p Unilever Plc ). It will be the applicant’s position that these obligations are particularly acute when the government ministry involved is one concerned with matters of criminal justice. It is submitted that in those circumstances the conduct of the ministry should exemplify fairness in public life, and set a standard for others to follow.
• A Judicial Review is not an appeal (R v Panel on Take-overs and Mergers, ex p Datafin Plc ), and nobody is on trial. Nobody has to be proven guilty of anything. If unfairness arose, irrespective of whether anyone was at fault, then that may provide a basis for a Court to intervene. (R v Criminal Injuries Compensation Board, ex p A )
• That said, the powers of the Court are limited. Nobody is compensated and no decision is irreversibly overturned. An outcome of a Judicial Review could be for a Court to decide that a public authority had not addressed a question in a fair and proper manner, and for the Court to provide guidance on how the issue might be more properly addressed. It would then be open to that public authority to address the issue again by proper means and, if appropriate, come to the same decision again. ( R [Ali] v Secretary of State for the Home Department ). Nevertheless, the findings of a Court can be highly influential in determining future public policy. Copies of the legal precedents referred to above can be found at Tab 4 pages 104 to 110.
THE MOTIVES OF THE APPLICANT.
• The Applicants motives were initially summarised in paragraphs 1 and 35 of the first Affidavit which is at Tab 5. It is acknowledged that the second and third bullet-points in paragraph 35 now fall away in light of the amended application. Nevertheless is it submitted that there has been a consistency in the applicants approach from the beginning of this matter namely:
• That he is seeking to reverse so far as possible the damage to his professional reputation arising from an unjustified suspension and,
• He wishes the court to consider matters of public interest arising from the structure and process through which he is accountable, and submits that these are inherently unfair and have the potential to undermine the independence of law enforcement and thereby the independence of Justice as a whole.
• As the application has progressed parts of the original affidavit have been overtaken by events, and the submission to the court has been amended in accordance with the grounds for the application as they now stand. Nevertheless it is hoped that the core principles which underpinned the original decision to seek redress before the Court are still evident.
“INHERENT UNFAIRNESS.” THE LEGAL PRECEDENT.
• In the case of R(Refugee Legal Centre) V Secretary of State for the Home Department (2005) it was held that:
“Potential unfairness is susceptible to one of two forms of control which the law provides. One is access, retrospectively, to judicial review if due process has been violated. The other, of which this case is put forward as an example, is appropriate relief, following judicial intervention to obviate in advance proven risk of injustice which goes beyond aberrant interviews or decisions and inheres in the system itself.” Tab 4 (pages 111 - 112)
• Paragraphs 20 onwards of the first affidavit (Tab 5) are no longer a substantive part of the amended application. However, they do seek to set out a history of how the suspension process was initially applied. The Court may feel able to conclude that the suspension came “out of the blue” in the midst of a family holiday and that no opportunity was afforded to challenge any inherent unfairness in the system prior to the suspension being enacted. It is therefore submitted that the Court is entitled to address this issue and to come to a view as to whether the processes governing the accountability of the Chief Officer of Police can be considered to be inherently unfair.
THE ACCOUNTABILITY ARRANGEMENTS AND THEIR RELEVANT HISTORY.
• The legislation governing the accountability of the Chief Officer of Police is the Police Force (Jersey) Law 1974. A copy of the Law is at Tab 6. It will be noted that the law has, in common with other legislation in the Island, been translated into the language of Ministerial Government. The practical effect of this is that the Chief Officer is no longer accountable to a Committee but to a single Minister. Article 9(1) empowers the States Employment Board to determine the terms and conditions under which the Chief Officer is appointed. The applicant believes that the only exercise of this power which is relevant to this case is the Disciplinary Code for the Chief Officer of Police.
• On the information available to the applicant, the origins of this code are not clear. Two documents have been provided by the respondent. The first is a code which refers to the Home Affairs Committee and other structures relevant to the governance arrangements which existed at that time. That code is at Tab 7. The second is the code on which the respondent now relies, which is at Tab 8. The second document appears to be a translation of the first document into the language of Ministerial government. It is believed by the applicant that this translation took place shortly before the suspension was enacted. The applicant has no further information on this issue. The applicant’s position on the first document is that its origins appear to be unknown. The applicant has corresponded with the respondent on this issue and no further information has been forthcoming. The applicant recalls that the document was in existence at the time of his appointment in 2000, and it therefore appears probable that it was drafted by a person now unknown, at some time during the latter part of the 20th century in order to meet the perceived requirements of that time.
THE APPLICANTS VIEW OF THE 1974 POLICE LAW.
• The applicant’s position is that the law and the disciplinary code taken together form a foundation for a system of accountability which is inherently unfair and inappropriate in a 21st Century democracy operating in accordance with the Convention on Human Rights. At the core of this position is the accountability of the Chief Officer to a single Minister who is under no obligation to consult with other parties, and whose powers are not subject to any of the checks and balances which are seen as fundamental in comparable jurisdictions. Details of the arrangements applicable in such jurisdictions will be given later in this document.
• The applicant is not alone is his concerns regarding the current relevance of the 1974 Law as a basis for modern and accountable policing, nor are the concerns of others recent in origin. In the mid-1990s the States felt it appropriate to establish a committee of distinguished individuals under the Chairmanship of Sir Cecil Clothier. The Committee was established in consequence of an Act of the States in 1995 which charged the then Defence Committee to commission:
“a full and thorough review of the policing system in Jersey including the powers of the police to combat crime and the protection afforded by law to the individual citizen together with the level of service provided.” (Tab 9. Page 174)
• In its report, commonly known as “Clothier One,” the Committee considered the accountability arrangements for policing set out in the 1974 law and observed:
“That Law is curiously oblique, seeming to prescribe more that the Defence Committee should be responsible for the administration of the States Police, than that it should constitute the political entity to which the police should be answerable.” (Clothier report, paragraph 7.3.1. Tab 9. Page 175)
• In order to provide for effective oversight of policing in the island the committee concluded that “We are of the opinion that Jersey needs a Police Authority.” The Committee then went on to offer alternatives as to the nature of such an authority. (Clothier report paragraph 7.3.3. Tab 9. Page 175)
• The report was considered by the States and this recommendation was agreed by way of proposition 49 of 1998 (Tab 10) which charged the then Defence Committee to establish a police authority with a mix of political and lay membership. Although the concept of a police authority was new in Jersey, the principle of such an arrangement was well established in the U.K., where local policing had for some time been overseen by comparable local bodies in a relationship with the Home Secretary.
• At the time of the applicant’s appointment in 2000 the Defence Committee had changed to the Home Affairs Committee and there was a “Shadow Police Authority” established along the lines of proposition 49 which worked in partnership with the Home Affairs Committee. The then Chairman of the Shadow Police Authority was a member of the selection panel which appointed the applicant. When Offered the appointment the applicant was told that it was intended that the Police Authority would progressively assume the responsibility for policing which at that time was held by the Home Affairs Committee. By this means the applicant was clearly led to believe that his accountability would for the foreseeable future be to a corporate body operating under the customary rules of conduct and procedural safeguards, including the requirement for a quorum, prepared papers, an agenda, a right to be heard by affected parties, and majority voting.
• Never at any time was it proposed that the accountability of the Chief Officer would be to a single individual to whom none of these safeguards applied. Had such a prospect been raised it is probable that the appointment would not have been accepted. The applicant will argue that such an arrangement is contrary to all recognised good practice and will draw attention to the fact that, for example, in the U.K., even the powers of the Home Secretary are balanced by those of a local police authority.
• As it transpired, the arrangements which applied in 2000 did not survive to the present time. The Shadow Police Authority suffered from changes in membership, and became discouraged by the lack of political progress in taking its status forward to that of a statutory body. It was never formally abolished but simply “drifted away.” The changes from Committee to Ministerial government removed the Home Affairs Committee and vested the same powers in a single Minister. In 2008 a further attempt was made to revive the concept of a Police Authority by means of a new Police Law. The applicant and others had been closely involved in the drafting of the law over a period of two or more years. The proposed law made it as far as scrutiny hearings but then ran out of time. Not long afterwards there was an election and a change of Minister. The intentions of the present government concerning the creation of a Police Authority are unknown to the applicant.
• It is the applicants position that the current arrangements by which the Chief Officer of Police is accountable to a single Minister, who is under no obligation to consult or agree with any other party, has not been arrived at in consequence of any considered policy process. It has arisen as a side-effect of other events, and is contrary to the expressed wishes of the islands legislature.
• In the context of the laws and precedents relating to Judicial Review the Court may hear of the rule of “Legislative Supremacy” which in earlier cases may have been expressed as meaning “Parliament can do as it likes.” It is now understood to be an accepted rule of law that domestic legislation must be compatible with the Convention on Human Rights. Nevertheless, it is the applicants position that insofar as this rule applies, it is in the applicants favour. In Jersey, “Parliament” has clearly recorded its wish that there should be a Police Authority, and charged those in government with implementation of that decision. There has now been more than sufficient time for government to implement the decision of the States. The applicant’s view is that it is for government to manage the consequences of the failure to implement proposition 49 of 1998. The applicant should not be expected to forgo his legitimate rights in consequence of the inaction of Ministers.
• The applicant hopes to convince the Court that his accountability to a single Minister is now part of a structure which is contrary to recognised good practice, contrary to the will of the States, and part of an arrangement which is inherently unfair. This is particularly the case in circumstances in which the Chief Officer of Police perceives his duties and responsibilities in a way which is contrary to the political agenda of the single Minister to who he is accountable.
HOW ACCOUNTABILITY IS ADDRESSED IN COMPARABLE JURISDICTIONS.
• Countries in the U.K. The applicant hopes that he can take it as accepted that the arrangements which apply in the U.K. are familiar to the parties. It is within the applicant’s knowledge that in the member-countries of the U.K. local Chief Constables are appointed by, and are accountable to, a “Police Authority” or “Police Board” which operates as a corporate body. In England and Wales the Authority consists of elected and appointed representatives and there is a defined relationship with the Home Secretary on matters affecting the performance of the force and its Chief Officer team. Her Majesty’s Inspectorate of Constabulary has an advisory role to all parties. Taken overall this is often described as a system of “checks and balances” which precludes premature or unjustified action by any party.
• In Scotland, Police Boards consist only of elected representatives and are mostly “joint,” in that their membership is made up from the different unitary local authorities which are contained within the area policed by the force, and thus often represent a wide range of local and political interests. A Minister in the Scottish Government and H.M. Inspectorate of Constabulary for Scotland discharge roles similar to those in England and Wales. The arrangements in Northern Ireland are less familiar but it is understood that a Police Authority has been established and that there is a defined statutory relationship with a Minister, and an advisory role exercised by H.M. Inspectorate of Constabulary.
• The new arrangements in Gibraltar. The applicant makes reference to Gibraltar because it is a comparable small jurisdiction under the British Crown, and also because it has recently undergone a transition from a Colony to a largely self governing democracy. Gibraltar’s history, and the international profile of the issues concerning its status, are well known. The applicant offers the view that in this context it is reasonable to assume that some of the most senior and experienced legal and constitutional minds will have been engaged in establishing any new arrangements for Criminal Justice, including law enforcement. Against this background the applicant invites the court to consider the Gibraltar Police Act 2006 which is at Tab 11.
• While the Court will view the law as it sees fit, the applicant wishes to draw attention to what he sees as the features particularly relevant to this case. Part 1 of the Law sets out the constitution of the Police Authority, which is charged, among other things, with maintaining the independence of policing. Section 6 provides for majority voting and in various sections, the islands Governor, as the representative of the Queen, has a role in nominating members to the Authority and in overseeing its work. Section 13 gives the Governor power to suspend the Commissioner in lieu of action by the Authority, but in doing so there is a requirement to notify the Chief Minister. Section 32(1) empowers the Governor to appoint the Commissioner on the advice of the Authority. Section 34(1) deals with the removal of the Commissioner and requires the involvement of the Authority, the Governor and the Chief Minister.
• In the submission of the applicant the key feature of the Gibraltar Law which is relevant in this case, is the system of “checks and balances” which precludes action by any one party without the involvement of others.
• The position in Guernsey. The applicant has made enquiries and understands that following the transition to Ministerial Government, Guernsey has retained a departmental structure, and in the case of the Home Department the Minister is supported by a Board consisting of four elected and two non-elected members. As the island continues to seek to improve its governance, a view has emerged that the present structure for the oversight of law enforcement may not be sufficiently independent of direct political control to meet modern expectations. Accordingly the Department produced outline proposals for the creation of a Law Enforcement Commission. These proposals were presented in a BILLET D’ETAT which was approved by the States on 24th September 2008. A copy of the Billet is at Tab 12. The Court may note the emphasis on transparency, the need for “checks and balances,” and the view that “there is now a need for a greater degree of operational independence.” Work is now taking place to develop these proposals into legislation, which it is understood will take into account best practice in the U.K.
• In the applicant’s view this is a further example of a small jurisdiction recognising the need to establish checks and balances in the oversight of law enforcement, and to remove both the reality and the perception of any direct political control over the operational activities of law-enforcement agencies. It should be noted that no comparable measures are being progressed in Jersey.
• The views of H.M. Inspectorate of Constabulary. Her Majesty’s Inspectorate of Constabulary have consistently supported the introduction of a Police Authority at all stages of its attempted development. In 2008 the Inspectorate reviewed the latest attempt to revive the concept and reported as follows:
“Her Majesty’s Inspector was pleased to be informed that discussions to consider the introduction of governance arrangements along the lines of a UK police authority had commenced. This development of corporate governance arrangements will provide a clear delineation between that of the law enforcement agencies and politicians.”
A copy of the relevant part of the Inspectorate report is at Tab 13.
THE DISCIPLINARY CODE FOR THE CHIEF OFFICER OF POLICE.
• The known history of the Disciplinary Code for the Chief Officer of Police is set out in paragraph 13 of this skeleton argument, and the former and current versions of the code are at Tab 7 and Tab 8. While the changes from the first to the second document may appear, at first sight, to be largely administrative, in one aspect the impact is substantial. Disciplinary powers are moved from a corporate body, namely the Home Affairs Committee, to a single individual, namely the Home Affairs Minister. Thus at a stroke, all of the procedural protections of a committee are removed and authority is vested in one individual, who is under no obligation to consult or agree with any other person. It is acknowledged that this amendment was part of island-wide changes in legislation arising from the change to Ministerial Government. Nevertheless, the impact on the relationship between law enforcement and any political agenda was substantial. The applicant recalls expressing reservations at the time but these were mitigated by the declared intention of Ministers to press ahead with the establishment of a statutory Police Authority. As explained earlier, this intention subsequently came to nothing, leaving the single line of accountability in place.
• At this stage the applicant wishes to make the following additional brief points regarding the Disciplinary Code.
• It was written before the Human Rights Law came into the force. No claim has been made by any party that the code has been subjected to an audit in respect of its human rights compliance.
• In recent years almost every person in the island who is in paid employment has benefited from the introduction of laws which provide statutory protections in the event of issues at work. Most workers have the protection of the Employment (Jersey) Law 2003. The Chief Officer of Police, who is not an “employee” but an “office holder” sworn by the Royal Court to “serve the Queen,” is exempt from that Law. This was recently re-affirmed by H.M. Attorney General who said “The States of Jersey Police are not States employees; in my view, they are Officers of the Crown by the nature of the oath which they take which is scheduled in the Police Force (Jersey) Law 1974.” (Hansard. Wednesday 29th April 2009) (Tab 14.)
• All Police Officers other than the Chief Officer and to some extent the Deputy Chief Officer have the Protection of the Police (Complaints and Discipline) (Jersey) Law 1999, and the Police (Complaints and Discipline Procedure (Jersey) Order 2000. These are both modern items of legislation which have been deemed to comply with Human Rights. In spite of representations, no comparable legislation has been brought into force in respect of the most senior members of the force.
• Thus, by a process of seemingly unconnected events, the Chief Officer of Police has been placed in a position in which he is accountable to a single politician, with no modern statutory code governing employment issues, and none of the checks and balances considered essential elsewhere.
• The interpretation of the code has been a matter of contention from the very beginning of the suspension. The applicant argued that any suspension should be preceded by a “preliminary investigation” under the code. The applicants view is set out in paragraphs 25 and 26 of the first affidavit which is enclosed at Tab 5. The Minister, at the suspension meeting on 13th February 2009, (Tab 2 page 61) argued that there were circumstances where this requirement did not apply. Had this particular issue come to Court the applicant would have drawn the Courts attention to the possible relevance of the principle of “legitimate expectation,” and argued that the code creates a reasonable expectation in the mind of the lay reader that some form of investigation and process will be applied before a suspension is put in place. It would have been further argued that this expectation cannot be removed by learned legal arguments which assert that the code can be interpreted differently if viewed in a particular way. For the information of the Court some of the authorities on “legitimate expectation” are enclosed at Tab 4 pages 112 to 113.
• In view of the amended application, the Court is no longer asked to resolve this issue. However, the applicant wishes the Court to consider whether the continuing disagreements as to the proper interpretation of the code in respect of suspension powers, are in themselves evidence that it lacks the clarity appropriate to a document of such significance, and is therefore inherently unfair. In determining this matter the Court may wish to consider the length and complexity of the Minister’s analysis of what he believes the relevant parts of the code actually mean. This is set out in pages 48 to 61 of the transcripts and elsewhere. It is commonly known that the Minister is an advocate of long standing. This is a consequence of political events, and the applicant respectfully asks the court not to be distracted by this issue, and to address the question of how the code might be understood by persons who are not legally qualified, and who may have occasion to refer to it for whatever reason. The applicant invites the court to take the view that the Ministers own detailed attempts to explain the suspension powers under the code are evidence in themselves that the code is not fit for purpose as a document that can be understood and applied by those it affects, and that it is therefore inherently unfair.
• The known view of the Minister. At the suspension review meeting of 13th February 2009 the Minister indicated that he had, prior to the meeting, taken legal advice on the code. He nevertheless found it necessary to devote almost half a day to discussing its proper interpretation. At one point he refers to the document (referred to in the transcript as the “agreement” probably due to a transcription error) and says “I think it fair to say there is no secret about the fact that my view is this is a very poorly produced document. I suspect that may be Mr Power’s view as well, nevertheless it is what we have.” (Page 48.) At a later stage he says “It is, I believe, common ground that the code was not well drafted.” (Page 59.)
• It can be seen from the transcripts that Dr Brain, on the applicant’s behalf, repeatedly suggested, that in view of the absence of clarity in the Jersey code, the Minister should make reference to comparable guidelines in the U.K. and that the Minister declined to do this. The applicant will later compare this stance by the Minister with his willingness to rely on U.K. guidelines in respect of other matters, where those guidelines are more consistent with his apparent agenda.
• In light of the above it is the applicants position that the Minister was in error in “pressing on regardless” in his use of the code when it was agreed by him and all parties that the code was flawed and that relevant alternative guidelines from comparable jurisdictions were available.
• The view of the Investigating Officer. The Chief Constable of Wiltshire, Mr Brian Moore, has been appointed by the Chief Executive on behalf of the Minister to conduct a disciplinary investigation which has been titled “Operation Haven.” The terms of reference for “Haven” are at Tab 15. During the course of the investigation Dr Brain, acting on my behalf, has corresponded with Mr Moore, seeking to establish the nature of his enquiries and how he proposes to operate within the terms of the Disciplinary Code. On 5th March 2009 Mr Moore sent a letter of reply. A copy of the letter is at Tab 16. Part 3 of the letter deals with “Notifications, caution and updates.” In that part of the letter Mr Moore states “I am advised that it is States Law and procedures that should prevail in this regard. That said, I have a duty to ensure that natural justice and fairness are available to Mr Power.” He later states an intention to “balance Jersey law with the principle of fairness.” The applicant offers the view that a reasonable interpretation of Mr Moore’s comments is that, in so far as his enquiry under the Disciplinary Code is concerned, he views Jersey law and procedures, and the requirements of justice and fairness, as separate things which need to be reconciled.
• How a comparable matter might be approached in England. In England and Wales the statutory processes distinguish between matters of alleged misconduct and those of efficiency and effectiveness. The local code does not make this distinction. In this context the applicant has enclosed documents provided by relevant authorities in England which may be of assistance in providing a comparison. They are:
• The Police (Conduct) Regulations 2008 which integrate disciplinary procedures for all ranks of the service. (Tab 17.)
• Informal guidelines circulated by the Chief Police Officers Staff Association (C.P.O.S.A), which are intended to assist with cases involving more senior ranks. These are at Tab 18. It is acknowledged that the Association has not felt it necessary at this time to update the guidelines in light of the most recent regulations. Given that the guidelines are concerned largely with procedures prior to any statutory process they may nevertheless be helpful to the Court and are therefore included, with appropriate reservations, for whatever benefit they may bring to the proceedings.
• The protocol relating to efficiency and effectiveness. (Tab 19).
• Guidelines provided by the Gloucestershire Police Authority with attached printout from the website of the Independent Police Complaints Commission. (Tab 20.)
• While the Court may wish to study the documents in detail, it might agree that there are common themes throughout, namely, the positioning of suspension as a last resort measure to be invoked only when no other alternative will suffice, and the clear distinction between “preliminary inquiries” by the Chief Executive, and full formal investigation by a senior officer from another force. U.K. authorities take the sensible (and affordable) view that the full mechanism of a formal investigation, let alone any suspension, should only be activated after there has been a preliminary examination of the allegation by an appointed committee of the police authority.
• In the applicants view this is one area in which the Jersey disciplinary code is particularly flawed. The concept of a “preliminary investigation” makes no sense if there is no other type of investigation. It is as though the person drafting the document has simply missed out a stage of the code with the consequence that a Minister is able to move directly to the “Nuclear Option” without the degree of preliminary corporate review and reflection which is required elsewhere. It is submitted that a more reasonable, and fairer way of addressing any concerns which the Minister had on 12th November 2008, would have been to inform the Chief Officer of the position and invite him, or a nominee, to submit a report and other relevant documents in response. The applicant believes that had this procedure been followed any matters of concern could have been resolved without the need for a formal investigation, a suspension, and all of the associated public expense and attendant publicity.
• Inherent unfairness and the “right to be heard.” The Courts have frequently given consideration to the “right to be heard” in the context of a Judicial Review. In the case of R V Secretary of State for the Home Department ex p Doody (1994) it was said that:
“Fairness will often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification or both.” Tab 4 page 114.
In R (Khatun) v London Borough of Newham (2004.) it was recorded that:
“A right to be heard is truly so called ..... it is an end in itself: it is simply the doing of justice which requires no utilitarian justification.” Tab 4 page 115.
• It is argued therefore that if the Disciplinary Code does not include the right to be heard then it is fundamentally flawed and inherently unfair. It is of course the case that the applicant considers that such a right is in fact provided for in the code by way of a preliminary investigation prior to the enactment of a suspension. The Court will note that at paragraph 26 of the first affidavit (page 133) the applicant acknowledges that there may be pressing and serious circumstances in which a shortening of the expected process could be justified. (Although the applicant maintains that there was no urgency in his own case as he was on holiday and not in command of the force.) (1st affidavit paragraph 27.2 page 134.) However, at the meeting of 13th February 2009 the Minister appeared to offer a conflicting view when he said “So to summarise, my position is that 2.3.3. (suspension) is capable of standing on its own without going through the other procedures. If the allegation or circumstances are sufficiently serious and if other factors are present......” (page 61)
• It is the applicants position that the Minister is simply wrong, and that his stance has more of an appearance of retrospective justification of his predecessors actions than any attempt to offer fair play or justice. Nevertheless the applicant makes the point that the Minister apparently considers that the code allows for suspension without a “right to be heard” The applicant submits that the mere fact that a Minister can come to such an interpretation (even if flawed) is further evidence that the code does not unambiguously provide for one of the basic principles of fairness, namely the “right to be heard” and is therefore inherently unfair.
• Finally, in this section of the argument, the applicant wishes briefly to ask the Court to view the evidence set out in the first affidavit paragraphs 20 onwards (pages 130 to 140). Although no longer a substantive part of the applicant’s case, this part of the affidavit sets out the applicant’s account of the process applied in the original suspension. It is the applicants position that proper process was not followed and that the suspension was flawed. The Minister at the time made public statements, and assured the States, that this was not the case, and that the process set out in the disciplinary code had been followed correctly. In light of the amended grounds for review the Court is no longer asked to rule in this matter. However, the applicant nevertheless asks the court to consider the view that whoever was right on that issue, the outcome is in the applicant’s favour. If the applicant was right, then the process used in the suspension was seriously flawed and the current Minister has inherited and maintained an unlawful act. If the former Minister was right, and the code did in fact allow for the process described in the affidavit, then it is submitted that this is further evidence of the inherent unfairness of the code itself.
SOME WIDER ISSUES ARISING FROM THE CURRENT ARRANGEMENTS FOR THE ACCOUNTABILITY OF THE POLICE.
• At this stage in the argument the applicant hopes to show that the combined effect of the Police Law and the Disciplinary Code creates a situation in which Human Rights are at risk, the independence of justice is open to challenge, and a Chief Officer of Police can be placed in a situation which is inherently unfair.
• The Jersey Legal system does not have a position equivalent to a Procurator Fiscal or an Investigating Judge or Magistrate. For all but a fraction of cases, access to justice for victims and witnesses is through the States Police under the command of its Chief Officer. It sometimes appears to be a popular belief that in matters of criminal justice, human rights are primarily for the benefit of an accused. In reality, free and independent access to justice is essential for the exercise of a range of rights by persons who may feel that they are the victims of threats or injustice by others. The rights in question include a fair trial (article 6), liberty and security (article 5), private and family life (article 8), and the right to life itself (article 2.) An independent system of justice is considered essential for the exercise of these rights. However, if access to justice is through a single gateway, and if that gateway has a political gatekeeper who is a member of the government in power, then the true independence of justice is open to question.
• By the standards of any liberal democracy, the powers of the Minister of Home Affairs in relation to the Chief Officer of Police are unfettered and draconian. The combined effect of the Police Law and the Disciplinary Code as now amended, is to allow the Minister, with a single stroke of his pen, without consultation or agreement with any other party, without a hearing, without a right to be heard, and without representation, to effectively remove the Chief Officer from office for an indefinite period and to do so to a point (it will be argued later) where the Chief Officer is effectively dismissed without a right of defence. It is the applicants submission that such a position is inconsistent with any claim for a society to be a 21st century
democracy compliant with Human Rights, and is a matter in which it would be entirely appropriate for the Court to intervene.
• The Court may also wish to consider the wider potential effects of action, or even threatened action, under the code. Chief Officers are commonly working in the island on licence. Action of the kind described can impact not only on the Chief Officer, but on his wife’s career, his children’s education, and the family home, thus potentially imposing a collective family punishment without a hearing or a right of defence. This potentially undermines a range of Human Rights not least of which is Article 8 which protects private and family life.
• Whereas a decision by the Minister that he proposed to dismiss the Chief Officer would provide a right of an appeal to an independent panel, under paragraph 3.1 of the code, there is no corresponding right when subject to a suspension, no matter how prolonged. The only form of appeal open to the Chief Officer is by way of a judicial review, which, for a lay person, is a long and complex process delivering limited redress. As experience has shown, in such an action, the Minister can be assisted by the full resources of the Law Officers Department at public expense, and the Chief Officer can be refused comparable representation. The Court will be aware that the applicant has given some consideration to asking the Court to review this refusal. However, the Solicitor General, on the respondent’s behalf, has indicated that such an application would be opposed, and it is clear that were the applicant to press ahead this would cause further legal argument and delay, which would distract the course of this case from its core purpose. The Court may note that the protocol for England and Wales, referred to previously, (Tab 19), contains at paragraph 35, provision for a Chief Officer to be reimbursed for legal costs. The local code contains no such provision
• The Court will be familiar with the established tradition of policing without “fear or favour,” which to be effective needs to be free of direct political control, intervention, or pressure. In order to preserve this principle it is a commonly held view in comparable jurisdictions, and the declared wish of this Island’s Parliament, that the police service should be accountable to a corporate body which is so comprised that no single political interest is paramount. It is the applicants position that the situation progressively created by the Law and the Code has placed Jersey on a reverse course to accepted good practice and has vested in a single Minister powers which are potentially oppressive, draconian, and contrary to the principles of Human Rights. In any difference of view in which the interests of policing without “fear of favour” collide with political expediency, the Chief Officer is placed in a difficult if not impossible position with no effective route of appeal or redress.
• The possibility of a situation in which law enforcement and political interests collide is not academic. It is the applicants view, based on long experience, that it is impossible to lead any police service effectively without engaging at some time in activity which is seen as politically controversial. Paragraphs 10 to 19 of the first affidavit (pages 125 to 129) describe the progressive development of such a situation in which tensions developed between the leadership of the force and some politicians and civil servants, during the course of which the possibility of suspension was suggested in a threatening manner. It should also be noted that the previous and current Minister have applied the Disciplinary Code in a way which is capable of being seen as retrospective action, in that everything that is apparently alleged occurred during the tenure of a previous Minister who, it is believed, may have a different view of events from her successors. Given the frequent and sometimes unexpected manner in which Ministerial office can change hands, the implications of this precedent are substantial.
• The Applicant hopes that he has provided sufficient evidence to enable the Court to conclude that the arrangements through which the Chief Officer of Police is accountable to the Home Affairs Minister, and the powers used to suspend the Chief Officer, are inherently unfair and are therefore unlawful.
THE INTRODUCTION OF NEW CRITERIA BY THE MINISTER AND HIS FAILURE TO ALLOW A FAIR OPPORTUNITY TO MAKE REPRESENTATIONS.
• The Second of the four grounds for the application relates to the conduct of the Minister in relation to the two suspension meetings of 13th February and 5th March 2009, but primarily in respect of 5th March. This part of the skeleton argument is supported by the second affidavit which is at Tab 21. Transcripts of the two meetings have already been referred to by the applicant and are at Tab 2 and Tab 3. In arguing this aspect of the case the applicant will rely again on the authorities already introduced at paragraph 45 which relate to the “right to be heard.”
• It is the applicant’s position that the right to be heard makes little sense unless it is a right which is focussed on the issue in question. In holding this view the applicant is supported by Ridge v Baldwin (1964) in which it was said:
“the essential requirements of natural justice at least include that before someone is condemned he is to have an opportunity of defending himself, and that in order to do so that he is to be made aware of the charges or allegations or suggestions which he has to meet.”; “ here is something which is basic to our system.” ( Tab 4 page 106)
Support is also offered by Secretary of State for the Home Department v MB (2007) in which reference was made to:
“(control orders and individuals’ Art 6 right to be told the case against them)” (Tab 4 page 116.)
• With these considerations in mind, Dr Brain wrote on my behalf to the Minister on 6th February 2009 in an effort to prepare to make relevant representations at the suspension meeting scheduled for 13th February 2009. Dr Brain asked for reciprocal disclosure and in particular for details of any counter-arguments to the case for lifting the suspension. The purpose of this was to enable the applicant to exercise the right to be heard in respect of whatever reasons the Minister felt justified maintaining the suspension up to that point. The letter from Dr Brain is at Tab 22.
• The Minister did not answer the letter. At this stage the applicant records that this behaviour is not untypical of the approach taken by the Minister to correspondence from the applicant’s professional association which has been sent with a view to opening a dialogue in respect of his interests. Dr Brain wrote to the Minister on 19th December 2008 seeking a suspension review. After making further enquiries Dr Brain received an acknowledgement from a civil servant, but no substantive reply. On 13th January 2009 Dr Brain wrote again to the Minister again raising the issue of the need for a suspension review and other issues. The Minister did not acknowledge or reply to that letter. Both letters are at Tab 23
• Intentionally or otherwise, the approach of the Minister to legitimate correspondence from the applicants appointed representative, who sought on his behalf to challenge the suspension and to highlight the need for a proper review, has created the impression that the Minister is reluctant to engage in the process, or observe the basic courtesies of correspondence between professional parties. Taken together the letters from Dr Brain raise serious questions regarding fair play, due process and human rights. The Court may wish to consider whether the Minister did not answer the letters because he does not have any effective answers on these issues.
• In the letter of 19th December 2008 (page 358) Dr Brain draws attention to “the principles of the Human Rights Act that no action should be taken against an individual should be disproportionate to the matter alleged.”
• In highlighting the issue of proportionality Dr Brain had in mind a number of legal precedents and authorities some of which may be of assistance to the Court. The Judicial Review Handbook by Michael Fordham Q.C. Fifth edition. states on page 388:
“Proportionality means state proof of action as appropriate and necessary to achieve a legitimate aim.” (Tab 4) (page 117)
In R v Secretary of State for Health ex p Eastside Cheese Company (1999.) the Court asked whether measures are:
“appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.” (Tab 4) (page 117)
• Prior to the second suspension review meeting the applicant and his representative became further concerned that in the absence of a response from the Minister they were not in a position to make effective representations. In a further attempt to obtain clarification of the nature of any enquiry, and what might be alleged, on 20th February 2009, Dr Brain wrote to the investigating officer, Chief Constable Brian Moore. That letter is at Tab 24. A reply was not available prior to the meeting of 5th March 2009.
• During the meeting on 5th March 2009 Dr Brain made representations on a large number of issues, sought to determine the nature of the Ministers concerns, and the purpose of the investigation being conducted by the Chief Constable of Wiltshire. He asked whether it was an investigation into the management of the force, issues of effectiveness and efficiency, misconduct or discipline. Representations made by Dr Brain can be found in the transcripts at pages 85 to 86 and elsewhere.
• It is acknowledged that during the meeting there was discussion of material disclosed by the Minister prior to the meeting. This related to allegations concerning the management of the historic abuse enquiry and will be covered in more detail later in this argument.
• At the conclusion of the meeting the Minister delivered a judgement, which in the applicants view, introduced new criteria. This was in a statement which began “But put at its simplest, the issues boil down to this. Was the historical abuse enquiry mismanaged with resulting unnecessary adverse international publicity for Jersey and its people, difficulties in the conduct of resulting prosecutions and wasted expenditure.”
• The applicant has no recollection, and can find no record, of the matter of adverse publicity, or the difficulty in the conduct of prosecutions, being put to him, or he being asked to respond to these matters in any way at any time. These issues are not, at this time, included in the terms of reference for “Operation Haven” (Tab 15) and so far as is known, nobody has been tasked with seeking evidence to support or refute what the Minister alleges. The Court is asked to consider whether the introduction of these issues by the Minister amounts to an “ambush defence,” which has been introduced by him after the opportunity to make representations had ended. If this is the case then it may support the conclusion that the “right to be heard” has been denied in respect of these two matters.
• It is noted that in the Ministers affidavit at paragraph 26 he links the issues of adverse publicity and public confidence in the police, and points out that the matter of public confidence was raised by Dr Brain. In raising this issue it is probable that Dr Brain would have in mind the English and Welsh protocol at Tab 19 (page 335) which states “A senior officer should only be suspended from duty under section ............. where this is required for the maintenance of public confidence in the force. Suspension is a grave matter and the authority or the Secretary of State will need to make a judgement about whether suspension would enhance or diminish public confidence.” It is the applicant’s position that a decision relating to a “grave matter” ought to be evidence-based. If reputational issues were in the Ministers mind, and if he saw them as relevant to his deliberations, he should have responded to the prior requests to disclose the grounds on which he was maintaining the suspension. This would have enabled focussed representations to be made. Instead, in paragraph 27 of his affidavit, he simply asserts that he is right by stating “As the Minister responsible I was sufficiently well placed, in the context of a review of a suspension, to make value judgements about the likely effect on the reputation of the States of Jersey Police of the Media coverage of Operation Rectangle.” The applicant invites the Court to consider whether the Ministers approach on this and related issues shows significant acceptance of the burden of proof which rests with him.
• In considering the Ministers conduct of the suspension reviews the Court may find it helpful to consider the case of R (Banks) v Secretary of State for the Environment, Food and Rural Affairs (2004) in which the Court addressed whether a defect in an earlier decision had been cured by a further consideration. In that case the Court found:
(no evidence of a “fair and open-minded and comprehensive” reconsideration) (not “a genuinely open-minded review” rather “striving to defend an earlier decision in the context of adversarial litigation.” ) (Tab 4. Pages 119 to 120)
• In this context the words of the Minister recorded in the transcript of the meeting of 5th March 2009 (Tab 3. Page 101) may be of relevance, when he said “I appreciate that Mr Power may now wish to pursue judicial review proceedings in some amended form and obviously that is entirely a matter for you, Mr Power. Unfortunately we will find ourselves as adversaries in that matter if you do but there it is.”
• The Court may also find it helpful to consider the Ministers comments on reputational matters and expenditure alongside those attributed to the former Chief Minister at the time of the suspension by “Times Online” (Tab 25.) The applicant invites the Court to consider whether there are similarities between the statements made by the then Chief Minister and those made later by the current Home Affairs Minister, and if they are, to consider whether the comments of the Minister in his judgement on 5th March 2009 have more of the characteristic of a “party line” rather than a genuine open-minded review based on a fair reconsideration of the evidence.
• “Adverse publicity” and “prosecution difficulties.” The possibility of opposing arguments. It is the applicants position that these are two matters which were clearly in the mind of the Minister when he came to his decision, that he refused to provide this information prior to the suspension review meeting, and then structured the meeting in a way which ensured that neither matter was mentioned until the opportunity to make representations had passed. The purpose of what briefly follows in this and the following related paragraphs, is not to explore alternative views in depth, or to ask the Court to determine the strength of those arguments, but to illustrate that alternative arguments exist and that, in the interests of fair play, they should have been heard.
• The matter of publicity and reputational impact is explored in more detail in the second affidavit paragraphs 11 to 13 (Tab 21 pages 349 to 350). The Court is asked to note that an argument can be constructed, that the reputational impact of the abuse enquiry had positive features, and that reference can be made to the corresponding 152% increase in reports of historic abuse unrelated to the enquiry. (The relevant statistics are at Tab 26.) The applicant, if given the opportunity by the Minister, would have argued that this showed improved confidence in the Islands systems of justice and challenged the Minister to produce hard statistics which supported any contrary view. It could also be argued that the publicity concerning the enquiry projected a positive image of the island as a modern transparent democracy, willing and able to confront and address difficult internal issues. The actions of the Minister prevented these arguments from being heard or considered.
• Without further information it is not possible to address the matter of alleged difficulties in prosecutions in detail, or to understand more fully whether the Minister believes that this alleged issue is related to matters of publicity. At this point the applicant can only observe that it is understood that the cases which are currently subject of prosecution relate to alleged actions which occurred a number of decades ago. They were not prosecuted at the time or in the decades which immediately followed the alleged crimes. They were not prosecuted in the early part of this century. They appear to have been prosecuted only when additional evidence became available, and it is believed that this additional evidence was offered by witnesses only after the publicity surrounding 2007/2008 phases of the enquiry. This is the only information which the applicant has. Without any more information the applicant can only observe that the Ministers position appears to be the reverse of the truth but can take the matter no further. It is noted that the Ministers affidavit sheds no further light on this issue. There may be an opportunity during the hearing to explore with the Minister where his information on “difficulties in prosecutions” came from and how it assumed an apparent evidential value.
• The applicant hopes that he has provided sufficient information to enable the Court to conclude that the Minister conducted the suspension review process in a way which denied the applicant the “right to be heard” in respect of two key issues which appear to have been at the forefront of his thinking. The Court is also asked to conclude that in this and other respects, the Minister has failed to discharge the burden of proof, which rests with him, that the continued suspension is justified, proportionate and necessary.
THE FAILURE TO CONSIDER RELEVANT EVIDENCE.
• It is the understanding of the applicant that the duty of an authority to properly consider relevant evidence is a well established principle in law. By way of illustration, in the case of R v Secretary of State for the Environment, ex p Greater London Council (1985) the Court identified ways in which a decision under review might be procedurally improper. These included:
“Failure properly to marshal the evidence on which the decision should be based. For example, taking into account an immaterial factor or failing to take into account a material factor or failing to take reasonable steps to obtain the relevant information.” (Tab 4. Page 111)
• From the beginning of the suspension period the applicant has sought information on the evidence on which the Minister is relying in maintaining the suspension in order that consideration could be given to seeking a Judicial Review. Typical of these endeavours is a letter dated 11th December 2008 from the applicant to the Minister seeking eleven items of information. This letter is at Tab 27. In spite of this and other attempts to establish the nature of the case against which representations could be made, little was achieved until the first suspension meeting of 13th February 2009. It was at this meeting that the Minister undertook to provide additional information. The applicant later received the following:
• A copy of a letter from the Deputy Chief Officer, Mr David Warcup, to the Chief Executive, Mr Bill Ogley, dated 10th November 2008. (Tab 28.)
• A script and visual aids said to have been used for a briefing to Ministers and others on the evening of 11th November 2008 and for a media briefing the following morning. (Tab 29.)
• At earlier stages in the process mention had been made of a review report prepared by the Metropolitan Police. At the meeting on 5th March 2009 the Minister indicated that he was withdrawing this report for any purpose relating to the suspension, (transcript page 73.) It therefore became clear that in sustaining the suspension the Minister was relying totally on the documents listed in the above paragraph. The Deputy Chief Officer of the Force, Mr David Warcup (now Acting Chief Officer) is the sole author of the first document and is believed to be the principal author of the second documents.
• In his affidavit (paragraph 28) the Minister States that “Mr Power complains that I am relying totally on parts of the letter from David Warcup to the Chief Executive dated 10th November 2008. I decided that I would not rely on those parts of the letter which relate to information provided by the Metropolitan Police. I did this to be fair to Mr Power because neither he nor I had seen the report and could not therefore assess whether the relevant extracts were taken out of context or not.” With due respect to the Minister, this is not entirely true. In the transcript of the first suspension review meeting (Tab 2 page 65) the Minister is recorded as saying “there is a second difficulty which I will be absolutely open with you about, which is this, and it is a relationship issue in relation to the States of Jersey Police and the Metropolitan Police who are not entirely happy that a report was produced for a particular purpose and is now going to be involved for a different purpose. But let me see (say?) if I can ... if it was not referred to in the letters it would not be in play at all.” At the meeting on 5th March 2009 the Minister referred to the matter again Tab 3 page 73) and said, “The Metropolitan Police are absolutely against this being used in any way in the context of this hearing or my having access to it in any form whatsoever.”
• On the information which is currently available, and based on the applicant’s experience, the position regarding the Metropolitan Police report appears to be straightforward enough. The Metropolitan Police refuse to allow the Minister to rely upon it for suspension purposes. This is no surprise. The use for such a purpose of a “quick and dirty” review by junior officers mandated to provide critical challenge, would be contrary to all recognised practice. It would also set a precedent, with consequences detrimental to the public interest, including the probability that no Chief Officer of the future would be willing to commission such a review.
• The consequence of the decision by the Metropolitan Police is that the Minister now relies totally on the opinions of the Deputy Chief Officer Mr David Warcup. The applicant asks the Court to agree that a fair decision-maker, particularly one who is making a decision of major public significance, should show caution when acting upon the opinion of one person. This is particularly the case when the person offering the opinion has a significant professional and financial interest in the outcome. It is even more so when the opinion of the one source relied upon is open to challenge.
• The transcript of the suspension review meeting of 5th March 2009 (Tab 3. Pages 92 to 97) shows that Dr Brain, a senior and experienced Chief Constable, had little difficulty in raising challenges to the accuracy of what is claimed in the letter of 10th November 2008. This matter is referred to in more detail in the second affidavit paragraphs 15 – 18 (pages 351 to 352.) It may also be noted that the letter from Mr Warcup also makes some general comments relating to the overall management of the force. These will be briefly addressed in the final part of this document.
• A particular feature of the letter and presentation material is the apparent “revelation” that the forensic evidence obtained during the abuse enquiry did not provide a basis for the commencement of a murder enquiry. The “Times Online” entry at Tab 25 is headlined “Jersey Police Chief suspended after police rule out murders at children’s home.” Other local media and political statements took a similar line. Basic research from open source material can readily show that the supposed “revelation” was in fact old news which had been released almost four months earlier. An extract from the B.B.C. website at Tab 30 gives details of an interview in July 2008 with the previous senior investigating officer who gives what the Court may view as a calm and balanced assessment of the forensic evidence, and comes to the conclusion that it is unlikely that a murder enquiry will be opened. If the Minister did not know this prior to 5th March 2009 he was left in no doubt on the day, and was provided with a copy of the website entry.
• Given the apparently undisputed fact that the Minister is relying on evidence from a single source, and given that he was shown that the accuracy of evidence from that source did not appear to be reliable, it is submitted that he had a clear obligation to view any other evidence which could confirm or refute the one source of evidence in his possession. The applicant can show that such evidence has been available to him from the very beginning of the suspension, and that it has been repeatedly drawn to the Ministers attention. Yet, he has refused to view it or to take it into account. This issue is covered in detail in paragraphs 18 – 24 of the second affidavit (pages 351 to 354). In particular the Minister was reminded of the importance of this evidence in letters sent to him prior to both review meetings. Copies of the letters are at Tab 31. The Minister did not reply to either letter.
• For the purposes of the skeleton argument the applicant simply records that in the earlier stages of the enquiry, it was recognised that the force had skill gaps in the strategic management of a major crime enquiry, and in consequence an approach was made to the relevant U.K. authorities who appointed a team of experts to provide advice and guidance. The team was drawn from a group which advises the Association of Chief Police Officers (A.C.P.O.), and was led by an internationally recognised expert in the investigation of serious crime. There is a wealth of open-source material relating to his investigative background, a small sample of which is at Tab 32. During the course of the investigation the team under his leadership briefed Ministers on the progress and standards of the investigation, and prepared reports and assessments which are available to be viewed and taken into account by the Minister. At the time of writing the terms of his suspension prevent the applicant from having access to the reports. They appear nevertheless to have been seen by others including the media. The applicant has seen one media report which states that at one point 27 recommendations were made and that the force was subsequently commended for the speed at which these were acted upon. So far as the applicant is able to recall, this report appears to be accurate.
• In his affidavit (paragraph 16) the Minister states “I came to the conclusion that in order to consider the SOCA reports properly and determine what weight to be attached to them, I would have had to hear oral evidence from the author(s), consider what information had been given to them and the nature of the enquiries conducted by them.” The applicant would point out that these reports are the only reports which he has asked the Minister to take into account and that he has done so repeatedly from the first minutes of the suspension. It should also be noted that the requirement for oral evidence and the assessment of the information provided, does not appear to have been applied to the unsubstantiated opinions of the Deputy Chief Officer upon which the Minister now entirely relies.
• The applicant has repeatedly drawn these reports to the attention of the Minister and has asked that in the interests of fairness, they be taken into account. The Minister has consistently either ignored, or refused these requests. In the light of the Ministers refusal it is the applicant’s position that the Minister has failed in his legal duty to properly marshal the evidence on which a decision should be based and to take into account material factors.
• The Court might also see as relevant the apparent fact that had the Minister conducted a “preliminary investigation” in the manner of a Police Authority in the U.K., or as appears to the applicant to be a requirement of the Jersey Code, it would have been open to the applicant to determine which documents were put forward to support his own position. By not following a preliminary process, and by denying the applicant access to all relevant files and documents as part of the suspension conditions, the Minister has effectively assumed the roles of prosecutor and judge, and in addition exercised a veto of what may or may not be put forward on the applicant’s behalf.
• There is one further aspect to this matter which the Court might find of assistance in its assessment of the Ministers actions. At Tab 33 there is a copy of an email dated 4th March 2009 from a Mr Wayne Bonne of “Operation Haven” and related correspondence. Mr Bonne advises the Minister against disclosure of the reports compiled by the experts appointed by A.C.P.O. but does so in the context of a disciplinary investigation rather than a suspension review, or indeed, the business of this Court. The email from Mr Bonne was one of the reasons offered by the Minister at the meeting of 5th March 2009 for not considering the reports. It will be noted that Mr Bonne uses as part of his authority the English police misconduct regulations. There is no record of the Minister expressing any reluctance to be guided by these regulations in this particular matter. The applicant draws attention to the apparent contrast between the Ministers position in respect of this particular issue, with his earlier reluctance to be guided by English procedure in matters of suspension. The applicant will refer to another comparable example later in this document.
THE DRIFT TOWARDS “CONSTRUCTIVE DISMISSAL.” AND OTHER ASPECTS OF UNFAIRNESS.
• The Applicant was suspended on 12th November 2008 and at the time of writing there is no indication of when that suspension will end. The applicant’s professional association (C.P.O.S.A,) has no record of any police officer of equivalent rank being suspended for a significant period and then successfully resuming a career, even if totally vindicated from any allegation. Either the officer does not return to work at all, or the return is for a brief period before departure. This precedent is well known to the Minister and has been known from almost the beginning of the suspension. This aspect is covered in more detail in the second affidavit, paragraphs 25 – 30. (Tab 21 pages 354 to 355.)
• The applicant invites the Court to consider whether the Minister is in fact engaged in a process of “dismissal by stealth” which would effectively by-pass the need for an evidence based assessment and a fair hearing In any event, the applicant asks the Court to agree that the potential for a long suspension to evolve into a constructive dismissal, and the unanimity of the precedents, entitles the Court to set a higher test of whether the Ministers actions are justified, necessary and proportionate, and whether he has successfully discharged his burden of proof in that regard.
• The affidavit also draws attention to the fact that the terms of reference are crafted in a way which makes a long and difficult enquiry inevitable. The terms of reference also contain no specific allegations of misconduct.
• At this stage it may be appropriate to note that in his affidavit at paragraph 24 the Minister states that “It is incorrect to say that Mr Power has no information about what is being alleged against him. The letter of suspension of the 12th November contains details of concerns and Mr Power has been provided with the terms of reference for the disciplinary investigation currently underway.” The letter of suspension is at page 34 of the bundle. The Court will note that what appear to be the significant elements of the allegations are preceded by the statement that they are “Examples of these concerns from the Metropolitan Police Report.” These include allegations relating to the supervision of D.C.O. Harper and the forensic strategy. As stated earlier in this argument, at the meeting of 5th March 2009 the Minister said that the Metropolitan Police report was withdrawn for the purposes of considering the suspension and should be treated as “not being in play as it were.” (page 73) Later in the same meeting the Minister gave his reasons for sustaining the suspension and these included “the possible lack of supervision of Mr Harper, in relation to the forensic strategy.” (page 99.) This appears to be evidence which he had stated his intention to exclude a short time previously. Against this background the applicant can make no sense of the position of the Minister, who appears to include and exclude evidence in a way which is inconsistent, contradictory, offers no fair basis for a response. The outcome is that the suspension is continued with no prospect of a return to work in the foreseeable future.
• In his affidavit (paragraph 17) the Minister refers to the constructive dismissal aspect of the application and states “I do not consider that there is any reason to conclude that the situation has developed in which Mr Power is effectively constructively dismissed. Apart from any other arguments in response to this contention, there is the obvious point that in order to claim that he has been constructively dismissed, Mr Power has to resign from office.” The applicant hopes that the Minister will not be too disappointed to learn that such a resignation will not be forthcoming.
• It may be however that the key point of this argument has been misunderstood by the Minister. The applicant does not argue that he has already been constructively dismissed. He draws attention to the fact that from the very beginning it has been pointed out that all of the precedents and all of the relevant guidelines, indicate that the suspension of a person of Chief Officer rank is normally a career-ending event and that in perpetuating the suspension the Minister knows full well what he is doing. The longer a suspension, the less the probability of a Chief Officer successfully resuming a career. The applicant is simply making the point that against this background the standard of proof for sustaining the suspension, which rests with the Minister, should be set at an appropriately high level.
• Finally on this particular issue, there is the Ministers view of the timescale of the investigation which is set out in paragraph 17 of his affidavit, in which he says “I do not accept the fact that that the disciplinary investigation is taking longer than perhaps initially anticipated justifies reaching the conclusion that this is tantamount to a constructive dismissal. I do not have any control over the timescale of the investigation, which has been commissioned by the Chief Executive.” The applicant challenges whether the Minister is entitled to distance himself from the inevitable timescale of the investigation, and its potential consequences. The Chief Officer is not accountable to the Chief Executive, who in any event has no political role and is not accountable to the States. If the Minister claims that he does not have political responsibility for the length of the investigation within the terms of reference, then he may wish to identify who does.
• There is however a further reason why the Court may find the terms of reference of value in assessing the extent to which the Minister is committed to be fair, balanced and reasonable. That is, that the terms of reference for the disciplinary investigation itself, as set out in paragraphs one to three of the document, consist entirely of an assessment of performance against policing guidelines for England and Wales. The applicant understands that the guidelines do not apply to all of the U.K. and have certainly never been adopted in Jersey. Again, in contrast to his approach to U.K. guidelines on matters of suspension, the Minister has no difficulty on relying on U.K. guidelines for the purposes of a disciplinary investigation.
• Against this background the disciplinary investigation can only reach one conclusion. The applicant accepts that it is probable that the investigating officer will discover that in Jersey, the police do not always operate in accordance with the policing guidelines written for use in England. Given the unique laws, customs, and policing traditions of the island it would be remarkable if it were otherwise. The Minister must be aware of this, and he must also be aware of the future implications for the islands policing if the precedent is set that the Chief Officer can be disciplined for failing to apply English guidelines locally. The applicant sees this as further evidence of bias, and also of a willingness to override precedent and tradition in the pursuit of a single goal.
• In further assessing the extent to which the Ministers actions are proportionate and fair, the Court might find it helpful to refer again to the English guidelines dealing with suspension and removal on the grounds of efficiency and effectiveness at Tab 19. The Court might agree that these powers are set in the context of a force, and a leadership, which has given rise to concern regarding matters of efficiency and effectiveness over a period of time, and that this should be evidenced by independent assessment and performance statistics. Although the Minister himself has raised no direct allegations of this nature it was noted earlier that the letter from Mr Warcup at Tab 28 made some general comment of a negative nature. It might therefore be helpful for the Court to attempt to assess to what extent if any, there is evidence of performance, efficiency, or leadership issues being of concern locally. To assist with this process the applicant has assembled some documents dealing with these issues. They are placed together at Tab 34, and are as follows:
• Extract from report of H.M. Inspectorate of Constabulary 2006.
• Extract from report of H.M. Inspectorate of Constabulary 2008.
• Letter from the Minister for Home Affairs. 2007.
• Performance Review and Appraisal by the Chief Executive to the Council of Ministers. Completed in 2007.
• The Court may note that the documents (in the same order as above) include the following statements:
• “The current senior management team has continued to make improvements in performance, resources, management and capability since the 2000/1 H.M.I. Inspection Report which identified significant weaknesses in management and performance. There is now evidence to indicate that the organisation is perceived as modern, fast moving with high expectations of operational and cultural change amongst a motivated workforce.”
• “this is the third consecutive year in which crime has fallen”............. “the overall detection rate for 2007 was 40% compared to an average detection rate for the 43 police forces in England and Wales of 27% in 2006/7.”................ “The Home Affairs Minister said in the (annual) report: This is the final Police Annual Report for my period as Home Affairs Minister. During this period, crime has fallen significantly and public confidence in the safety of our community has grown. I know that much of this has been due to the hard work of the police officers and staff who work day and night to preserve our safety. As Minister, I am proud to be associated with their achievements.”.................. “The current S.M.T. (Senior Management Team) has continued to make improvements in performance, resources, management and capability since the 2005 Baseline Assessment Report, progress being driven through regular senior management meetings and a detailed action plan. There is strong evidence to indicate that the organisation is perceived as modern, fast moving with high expectations of operational and cultural change amongst a motivated workforce.”
• “Dear Graham ........ I just wanted to thank you for the excellent 2006 H.M.I. Report. This is a testament to your leadership ...............Your personal style embodies the vision, values and standards we have come to expect from a modern, go ahead police force, fit for purpose for the new challenges ahead.”
• “Graham is a high performer both as Chief Police Officer and as a member of the Corporate Management Board”................ “Graham continues to modernise and enhance the professionalism of the service. This means that at times he has to place ‘doing the right things’ above ‘doing things the easy and traditional way.’ I recognise and support his unflinching determination to maintain and enhance the integrity of the Police in all respects.”
The applicant asks the Court to agree that whatever is in the Ministers mind in sustaining the suspension, it cannot relate to evidence of an under-performing force and leadership. In the absence of such evidence it is submitted that the corresponding tests of justification, necessity and proportionality for whatever is offered in support of the suspension, need to be set at a level which takes fully into account the contrary evidence relating to the performance of the force and its Chief Officer.
• The applicant hopes that he has provided sufficient evidence to entitle the Court to conclude that the Minister has failed to achieve “the highest standards of public administration,” that at least some of his actions are “contrary to the spirit of fair dealing which should inspire the whole of public life,” and that in parts of the process he has failed to “act fairly in accordance with the highest public standards.” The applicant hopes to convince the Court that the Minister has failed to discharge his burden of proof that the suspension is a lawful sanction in all of the circumstances and that the Court should rule accordingly.
This is a long read and one that must be done many times. Sorry for the long post but we are only at the beginning.
Where does this leave the Appointment of a future Chief of Police who will know that in the past 18 months
A.Deputy Police Chief wrote a letter that got his boss suspended
B. They used a Met Interim Review in that Suspension
c. The Chief of Police was suspended with no right of reply and under no procedure on the 12th november 2008
d The Chief Executive destroyed the Notes before they were signed off by all parties
c A full scale Media attack saying what a Shocking job they had done
d Suspended for 18 months
e Then has all Disciplinary Charges Dropped
f Then has a Trial by Media again
THEN WE BLAME THE BLOGGERS FOR MAKING WARCUP LEAVE
WAKE UP ILM AND GANG THIS IS 2010