Sunday, June 17, 2012

Graham Powers Judicial Review - Part 2



Former Chief  of Police Graham Powers Judicial Review PART 2

We have the reply from the Attorney General which raises more questions. 

We have a reply from the - Justice Policy Group International Directorate Crown Dependencies Team

Who is over seeing the Jurat System?

Who decides what Jurats sit on each case?

The Question that must be asked is simple; Did Mr Power receive and Independent and Impartial hearing as is his right?



As I wrote on a previous blog posting which can be read here http://ricosorda.blogspot.com/2012/04/operation-end-game-21-judicial-review.html

I said;

"The next part of the timeline is the most crucial as it exposes the total hubris that operates in Jersey and has been allowed to operate unchecked for centuries. In this posting we will not only be looking at Graham Powers Judicial Review but his right to a fair and impartial hearing in the Royal Court of Jersey. This right not only extends to a former Chief of Police but extends to every one of you.  Can Jersey deliver this basic right? What I have discovered thanks to an anonymous comment on a previous posting is quite alarming. I have asked for answers from the Jersey Law Office, politicians and the Jersey Media. The emails will be reproduced below."


"The ECHR states that in the determination of an individuals rights, which is what any judicial review is, he or she has a right to be heard by an independent and impartial tribunal."
On the 8th September 2009 Graham Power entered the Royal Court. What happened next needs explaining. I have been trying to find the answers but none are forthcoming.



Let me explain;



The Commissioner was - J.A Clyde-Smith 



he was sitting with Jurats Le Breton and Clapham



Representing the Minister for Home Affairs was Solicitor General T.J. Le Cocq (now the sitting Attorney General)



There is a huge conflict of interest here. 




The Commissioner Clyde-Smith and the Solicitor General T.Le Cocqwere both partners at Ogiers at the same time. 



Jurat Clapham's husband is Michael Clapham - Michael Clapham, he was a partner in the Jersey practice Ogiers  from 1970 until his retirement in 2001 and is now a consultant to Ogier. He is an Advocate of the Royal Court of Jersey. His general practice included the areas of corporate and commercial, banking and litigation, but he now advises principally on private client and property matters. 


The Attorney General:
Relationships, either past or present, professional relationships or friendships between judges themselves or between judges and counsel, in cases they are presiding over or considering on appeal, has never been viewed as affecting the independence or impartiality of the court.  They do not amount to a conflict or any suggestion of bias


There are 12 Jurats. 

There are 6 Commissioners of the Royal Court

There is no excuse in having the conflicts listed above. 

We need to start looking at who sits on what cases.  

We will look at this more closely in the next posting


2.7 Deputy T.M. Pitman of the H.M Attorney General regarding potential conflicts of interest within the judicial system:
Given the small size of Jersey’s community, what checks and balances, if any, are in place within our justice system to ensure that no conflict of interest arises or that a fair hearing is compromised due to those sitting in judgment having close past links through the practice or friendship.
Mr. T.J. Le Cocq Q.C., H.M. Attorney General:
The principal check on possible judicial bias or lack of independence in Jersey or elsewhere is the high standards of integrity of the judges and other persons acting in a judicial capacity, but in addition to that, a party to any judicial proceedings has a right to challenge the judge or the presiding person if a lack of independence, real or apparent, is suspected.  All courts and tribunals in Jersey, whether criminal or civil, are public authorities and are obliged to conform to Article 6 of the E.C.H.R. (European Convention on Human Rights) which guarantees the right to a fair trial.  Furthermore, every member of the judiciary subscribes to a code of conduct which at paragraph 15 states that: “They shall not sit in a case where they have a financial or other interest or where the circumstances are such that a fair-minded and informed observer, having considered the given facts, would conclude that there was a real possibility that the member was biased.”  In all other cases, they are bound not to abstain from their duty to sit.  If a judge and I include Jurats, has a financial or other interest in the outcome of a case, he will disqualify himself and decline to sit to determine that outcome.  Similarly, if in his view, a fair-minded and informed observer would conclude that there was a real possibility that the judge was biased, he will also disqualify himself.  As I mentioned, any party has the right to apply to a judge to disqualify himself and the judge will consider that application by applying the correct legal tests.  If the judge declines to disqualify himself, then that decision can be challenged in the case of a judge at the Royal Court by an appeal to the Court of Appeal.
2.7.1 Deputy T.M. Pitman:
Obviously, I am not aiming this at anyone in particular, but I have to ask the Attorney General.  Am I right in thinking that a scenario could not happen, or would not happen, where perhaps a commissioner or a judge is overseeing a case with a background in one company?  Perhaps the Attorney General, but certainly not the present one, would have a background in that former company and then perhaps even a Jurat or perhaps their spouse could be from that company.  What I am trying to explain is that I am sure the Attorney General would agree justice has to be seen to be done as well as be done.  Would that sort of scenario be avoided?
The Attorney General:
Relationships, either past or present, professional relationships or friendships between judges themselves or between judges and counsel, in cases they are presiding over or considering on appeal, has never been viewed as affecting the independence or impartiality of the court.  They do not amount to a conflict or any suggestion of bias.  Judges and counsel are expected to fulfil their oaths of office and exercise their functions of Ministers of Justice impartially and professionally.  Relationships such as the one that the Deputy has suggested would not amount to a personal interest in the outcome of the case.  In fact, that matter was considered by the Royal Court and the Court of Appeal in the case ofThe Attorney General v Barra in the Royal Court.  The Court said: “There is no doubt that in every jurisdiction judges are closely acquainted with counsel and indeed, with appellate judges who sit in judgment upon their decisions at first instance.  None of these relationships affect in the generality the independence or impartiality of the Court.”  The Court of Appeal upheld the judge’s decision not to recuse himself in those circumstances.
2.7.2 Deputy M. Tadier:
How often are fair-minded and informed observers called upon in order to decide on whether there is a conflict?
The Attorney General:
The use of the formula, a fair-minded observer, is a reference to the test that a judge applies when he, himself, considers whether or not he should disqualify himself from presiding over a case.  If he is wrong and if a party feels that they have suffered an injustice as a result, it is open to the party, if they have applied to the judge to recuse himself and he refuses, to appeal to the Court of Appeal.  The Court of Appeal will, itself, apply the fair-minded and reasonable person test.
2.7.3 Deputy M. Tadier:
In other words, the Attorney General is saying that the judge uses this as a mental exercise.  He creates in his mind a fair-minded and informed observer for himself and then applies the test in his own way although that can be challenged subsequently.
The Attorney General:
As I mentioned, the reference to a fair-minded person is the reference to the standard that the judge measures any perception of conflict against.  That standard has been defined within case law and it has a more refined definition and I have used the simple formulated expression of it.  For example, the individual that one would refer theoretically against would be reasonable.  He would not be unduly suspicious.  He would not be unduly naïve.  He would be fully aware of all the material facts including the oath that the judge takes and the training that judges get and also, the legal obligations on the judge under Article 6 of the E.C.H.R.  There are a number of different factors that go up to make the composite of the fair-minded in a reasonable individual and it would not be possible in the context of an answer to an oral question to give a full explanation.
2.7.4 Deputy J.H. Young:
The Attorney General referred to both courts and tribunals and the training for achieving fair hearings.  Is the Attorney General able to confirm that all those people sitting in judgment receive training and follow the Codes of Practice that apply in the United Kingdom published by the Judicial Studies Board particularly for tribunals?
The Attorney General:
It is my understanding that all judges of the Royal Court undertake proper training.  I cannot talk to the training, if any, that is undertaken by members of tribunals in general.
2.7.5 Deputy M.R. Higgins:
I would like to thank the Attorney General for his explanations which are very interesting.  It has also brought to mind something that has been referred to me.  Because of my interest in the legal profession, I have had many people come to me with different matters.  One was the fact that a judge in a divorce case denied knowledge of this woman’s husband but then it turned out that he knew him rather more closely than he had indicated.  What is the remedy for this particular person in those circumstances because it appears that he denied initially having any major contact with him but papers came to light later which appeared to show that he did have a much closer relationship?
The Attorney General:
As I mentioned, if the judge should have recused himself and failed to do so, then that decision can be reviewed by an application to the Court of Appeal.  If there is no appeal as such because the judge has not made a decision, an application may be made, I think, to the Royal Court or to the Court of Appeal again to review the matter on the grounds that the judge should have disqualified himself.
2.7.6 Deputy M.R. Higgins:
Obviously, the person concerned does have no means to bring an action before the Court of Appeal.  How can a person challenge the situation if they do not have the funds to be able to do so?
The Attorney General:
In Jersey there is a legal aid system, a tour de rôle and in the event that there is a proper legal basis for a claim and the person cannot afford to bring that claim, then that claim should be brought on their behalf by a legal representative appointed under the tour de role.
2.7.7 Deputy J.H. Young:
If I may follow up the Attorney General’s answer.  Is it not correct that for a person to succeed in bringing an appeal under legal aid they would need to have a greater than 50 per cent chance of success in their case?
The Attorney General:
I am unable to answer that question.  I am not sure if there is a de facto percentage applied when legal aid is allocated.  I would have to make inquiries to find out the answer to that.
2.7.8 Deputy T.M. Pitman
Deputy Higgins really asked my question.  I thank the Attorney General for his answers but I think we have to remember that people in the legal profession are human too.  Perhaps he agrees that I am sure Sir Alex Ferguson would say he could quite conveniently put his feelings aside and referee the Manchester derby but I think most people would not agree.  My other question goes to the Jurat side and with the jury system; obviously the recruiting and vetting process is quite long and intricate.  How is that replicated in Jersey with the Jurat system?  Is it the same process?
The Attorney General:
My understanding of the situation is that the Jurats, by dint of their training and over time by dint also of their experience, have a thorough understanding of the requirements on them.  They have taken oaths of office and they understand the necessity to consider the questions of whether they can properly sit on a case on every occasion.  In a sense, that is a system which I have certainly seen working in practice where Jurats have disqualified themselves for sitting in appropriate circumstances.  There is, however, no external scrutiny, as far as I am aware, in the way of a jury selection process.  There is not such a process.
[10:30]


Justice Policy Group
International Directorate 
Crown Dependencies Team

102 Petty France,6th floor
Point 6.02
London

SW1H9AJ

Dear Mr R Sorda,
Subject: Graham Powers Judicial Review – Conflict of Interest

Thank you for your email dated 10 May 2012 copied to the Secretary of State of Ministry of Justice, in which you raise your concerns about the conflict of interest of Mr. Graham Powers in relation to his Judicial Review. Your email has been forwarded to the Crown Dependencies Team as we are responsible for managing the relationship between the UK and Crown Dependencies. I have been asked to reply. 

At the outset, I should explain that Jersey is not a part of the United Kingdom.   It is an internally self-governing Dependency of the Crown with its own legislative assembly, its own administrative, fiscal and legal systems and its own courts of law.

Consequently, the Judicial Review and any conflict of interest relating to it, are a domestic matter for the Jersey legal system (Courts) and not an issue upon which it would be appropriate for the Ministry of to intervene or comment upon.



 Yours sincerely,



http://ricosorda.blogspot.com/

Citizen Investigator

26 comments:

Anonymous said...

The payouts for the local abuse victims (£5,000 to £60,000) is now delayed.

It seems they are waiting for Williamson to waterdown terms of reference.

Anonymous said...

What criteria does one have to meet in order to become a Jurat? For anybody who has read the Sharp Report they will be in no doubt Mr. Le Breton should NOT be in such a position.

rico sorda said...

"What criteria does one have to meet in order to become a Jurat? For anybody who has read the Sharp Report they will be in no doubt Mr. Le Breton should NOT be in such a position."

We will be looking at these points.

When did Le Breton resign from Victoria College and when was he sworn in as a Jurat?

Surely people must have been aware what had gone on at Vic?

rs

rico sorda said...

"The payouts for the local abuse victims (£5,000 to £60,000) is now delayed."

I have not heard of this delay

rs

voiceforchildren said...

Rico.

Tim Le Cocq said;

" There is, however, no external scrutiny, as far as I am aware, in the way of a jury selection process. There is not such a process."

That is where the whole problem lies with the Jersey Administration.................no external scrutiny.

Did Graham Power QPM receive a fair and impartial hearing? Not in the real world he didn't but in Jersey this is normal practice!...................#hotfuzz

Anonymous said...

I constantly get reminded of the film Jaws when it comes to the Jersey Way. Amity Island is the island in the film where they deny the shark exists, then pretend they have caught the man eater and all is good then let people back into the water to find out they were lied to.

In Jaws though, they destroyed the shark eventually and thats where the similarity ends. So far.

Anonymous said...

You leave Le Breton alone.

Gary Glitter.

Anonymous said...

Here's the Chief Judge how can you expect justice in Jersey!?

Anonymous said...

Why has Senator Le Greasley gone so quiet on the COI?

Anonymous said...

To Gary Glitter, thanks for the chuckle. Sometimes situations are so grim, a laugh is required.

Zoompad said...

http://zoompad.blogspot.com/2011/11/jep-harry-mcrandle-fly-on-wall-gordon.html

Anonymous said...

“They shall not sit in a case where they have a financial or other interest or where the circumstances are such that a fair-minded and informed observer, having considered the given facts, would conclude that there was a real possibility that the member was biased.”

Oh really? Is there not a question over the status of a Jurat involved with the Pitman's case?


The Beano is not the Rag.

Anonymous said...

The recruiting of jurats is a closed shop where only the great and the good who will do what they're told get selected.

Anonymous said...

So it is "Trust Us" as far as checks and balances go.

Anonymous said...

The Attorney General states that: "All courts and tribunals in Jersey, whether criminal or civil, are public authorities and are obliged to conform to Article 6 of the E.C.H.R. (European Convention on Human Rights) which guarantees the right to a fair trial."

Is this happening in Jersey? Jersey is a very small Island.

Where can you read the declared interests of the Jurats? With Jersey being a small place and the Jurats coming from the higher reachers of society surely there must be somewhere you can obtain this information.........

voiceforchildren said...

Rico.

We need BOTH SIDES

Anonymous said...

2.7.8 Deputy T.M. Pitman
Deputy Higgins really asked my question. I thank the Attorney General for his answers but I think we have to remember that people in the legal profession are human too. Perhaps he agrees that I am sure Sir Alex Ferguson would say he could quite conveniently put his feelings aside and referee the Manchester derby but I think most people would not agree. My other question goes to the Jurat side and with the jury system; obviously the recruiting and vetting process is quite long and intricate. How is that replicated in Jersey with the Jurat system? Is it the same process?


The Attorney General:

My understanding of the situation is that the Jurats, by dint of their training and over time by dint also of their experience, have a thorough understanding of the requirements on them. They have taken oaths of office and they understand the necessity to consider the questions of whether they can properly sit on a case on every occasion. In a sense, that is a system which I have certainly seen working in practice where Jurats have disqualified themselves for sitting in appropriate circumstances. There is, however, no external scrutiny, as far as I am aware, in the way of a jury selection process. There is not such a process.



"My understanding of the situation is that the Jurats, by dint of their training and over time by dint also of their experience, have a thorough understanding of the requirements on them."

WTF is that all about?

Ian Evans said...

"They have taken oaths of office and they" ???


Will never repeat them or act under their Oath of Officer, EVER....

If a judge is not on his/her O of O, the defendant can NEVER WIN their case!!!

Anonymous said...

It's perfect. They can do whatever they want and say that you can appeal if you don't agree with a ruling, or if you think there was a conflict of interest in deciding a case. But despite Jersey bragging to the world about having a clean, well regulated system of oversight, and using the UK for image cover, Jersey is no democracy. If you know a ruling was unfair, and non-ECHR compliant, they will tell you it was. There is no way to get a neutral outside court opinion and it all comes back to various officials saying that Jurats and Judges are doing their jobs properly and you are daft to question it. If they were conflicted, they would recuse themselves. But of course we see conflicted courts all the time and there really is no recourse available unless those who are conflicted WISH to recuse themselves, which happens less often than needed.

Ian Evans said...

OH THOSE ILLEGAL RAIDS!

Ian Evans said...

OPERATION BOHAN

Anonymous said...

Operation Bohan is important. We should have you cloned so another good investigative journalist could look in to that for the evidence linked to Bowron. There is too much corruption to be properly covered by so few.

Zoompad said...

Operation Bohan: the company Kroll.

This might have nothing to do with it, but to me it is interesting:

http://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&ved=0CF4QFjAA&url=http%3A%2F%2Fzoompad.blogspot.com%2F2011%2F07%2Fdavid-cameron-surrounded-by-scoundrels.html&ei=0ULjT9e5HtSM0wXfk4GrAw&usg=AFQjCNEw7K0nKtpc2fm1634xAHyUKm2IjQ&sig2=eEHov958u2sBBv_-HWcgRw

RTS Cambridge Convention - Planning Committee

Mark Thompson BBC (chair), Dawn Airey - Five, Peter Bazalgette, Jim Beveridge - Microsoft, John Cresswell - ITV, Andy Duncan - Channel 4, Carolyn Fairbairn - ITV, Eileen Gallagher - Shed Poductions, Wayne Garvie - BBC Worldwide, John Hardie, Lorraine Heggessey - TalkbackThames, Janice Hughes - Spectrum Value Partners, David Kogan - Reel Enterprises, Nicholas Kroll

Ian Evans said...

MAD-DOG

Ian Evans said...

SWEEPING OUT THE YARD

Ian Evans said...

How they do it in NORTH YORKSHIRE, the Weirdcop Way.