A Blind Eye

I had intended to devote this Blog to p182/2011 which is the proposition to establish the long awaited Police Authority which was originally down for debate next Tuesday. Unfortunately it has now been deferred to 20th March. However before coming to the main contents of this Blog I would like to make a few comments on next week's Agenda.

I am pleased to see that Deputy Roy Le Herissier has lodged an amendment to PPC's proposition relating to the Electoral Commission P5/2012. As one can see Roy's amendment P5 is asking Members to revert to what the former House approved last March and the proposed Commission be independent. The propositions are due to be debated on 6th March.

I am disappointed that not one of the 50 Members could find the time to ask the Chief Minister for an update on what the Council of Ministers is proposing in relation to the Historic Child Abuse Inquiry which was approved by the States last March. Next Tuesday the Chief Minister is down for questions without notice, hopefully someone will be ask for an update and also ask that the Verita report and recommended Terms of Reference be published.

I note that four questions have been lodged relating to the suspension of the former police chief. Deputy Higgins is asking the Home Affairs Minister to publish the letter from the Deputy Chief Officer of the States of Jersey Police to the then Chief Executive of the States in November 2008, which precipitated the suspension of the Chief Officer of the States of Jersey Police and, if not, why not?

Those who have followed the suspension will know that it is apparent that the Deputy Chief's letter was amended without his knowledge because in paragraph 93 of the Napier Report R132/2010   it states;  In the light of the arrival and contents of the Interim Report, one interpretation of the facts is that an earlier draft of the Report of Mr Warcup was changed. Support for such an hypothesis can be seen in the further revision of the letters that were sent by Mr Crich at 21.15 on 11 November to the Solicitor General’s office, which are said in the email to have been “amended in the light of this evening’s conversation.” The version of the letter headed “Suspension from Duty” now states “On the 11th November 2008 I received a letter from the Chief Executive to the Council of Ministers enclosing a copy of a letter he had received from the Deputy Chief Officer of Police concerning an interim report he (the DCO) had received from the Metropolitan Police into the conduct of the historic child abuse enquiry in Jersey.” I must record, however, Mr Warcup’s assertion (which I have no reason to doubt) that his letter to Mr Ogley was not amended by him.

When giving reasons for resigning the former Deputy Police Chief blamed the activities of unnamed States Members and Bloggers but he must have been well aware that by his misguided actions he had allowed himself to enter a hornets nest where people at the highest level were prepared to bend or break the rules to achieve their goals. Bending, breaking or turning a blind eye to the rules brings me conveniently to my Blog.

The Report below was recently published in the New York Times and may well ring a bell with the recent arrest of a team of Drug Dealers in Jersey. I am not getting drawn into the actions of the Jersey officers involved with the arrest other than to say that the public are entitled to trust their police to conduct themselves in a law abiding manner. The same should be expected of their Civil Servants and Politicians.

As one can see below not all Courts are prepared to turn a "Nelson blind eye" when police officers, no matter how well intentioned, bend or break the rules to bring about an arrest. As a consequence the drug dealer was found not guilty and able to continue with his despicable trade.

Justices Say GPS Tracker Violated Privacy Rights

Published: January 23, 2012

WASHINGTON — The Supreme Courton Monday ruled unanimouslythat the police violated the Constitution when they placed a Global Positioning System tracking device on a suspect’s car and monitored its movements for 28 days.

A set of overlapping opinions in the case collectively suggested that a majority of the justices are prepared to apply broad privacy principles to bring the Fourth Amendment’s ban on unreasonable searches into the digital age, when law enforcement officials can gather extensive information without ever entering an individual’s home or vehicle.  Walter Dellinger, a lawyer for the defendant in the case and a former acting United States solicitor general, said the decision was “a signal event in Fourth Amendment history.” “Law enforcement is now on notice,” Mr. Dellinger said, “that almost any use of GPS electronic surveillance of a citizen’s movement will be legally questionable unless a warrant is obtained in advance.”  An overlapping array of justices were divided on the rationale for the decision, with the majority saying the problem was the placement of the device on private property.  But five justices also discussed their discomfort with the government’s use of or access to various modern technologies, including video surveillance in public places, automatic toll collection systems on highways, devices that allow motorists to signal for roadside assistance, location data from cellphone towers and records kept by online merchants.   The case concerned Antoine Jones, who was the owner of a Washington nightclub when the police came to suspect him of being part of a cocaine-selling operation. They placed a tracking device on his Jeep Grand Cherokee without a valid warrant, tracked his movements for a month and used the evidence they gathered to convict him of conspiring to sell cocaine. He was sentenced to life in prison.  The United States Court of Appeals for the District of Columbia Circuit overturned his conviction, saying the sheer amount of information that had been collected violated the Fourth Amendment, which bars unreasonable searches. “Repeated visits to a church, a gym, a bar or a bookie tell a story not told by any single visit, as does one’s not visiting any of those places in the course of a month,” Judge Douglas H. Ginsburg wrote for the appeals court panel.  The Supreme Court affirmed that decision, but on a different ground. “We hold that the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search,’ ” Justice Antonin Scalia wrote for the majority. Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Sonia Sotomayor joined the majority opinion.  “It is important to be clear about what occurred in this case,” Justice Scalia went on. “The government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”  When the case was argued in November, a lawyer for the federal government said the number of times the federal authorities used GPS devices to track suspects was “in the low thousands annually.”  Vernon Herron, a former Maryland state trooper now on the staff of the University of Maryland’s Center for Health and Homeland Security, said state and local law enforcement officials used GPS and similar devices “all the time,” adding that “this type of technology is very useful for narcotics and terrorism investigations.”  Monday’s decision thus places a significant burden on widely used law enforcement surveillance techniques, though the authorities remain free to seek warrants from judges authorizing the surveillance.  In a concurrence for four justices, Justice Samuel A. Alito Jr. faulted the majority for trying to apply 18th-century legal concepts to 21st-century technologies. What should matter, he said, is the contemporary reasonable expectation of privacy. “We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the four-week mark,” Justice Alito wrote. “Other cases may present more difficult questions.”  Justice Scalia said the majority did not mean to suggest that its property-rights theory of the Fourth Amendment displaced the one focused on expectations of privacy.  “It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question,” he wrote.  Justice Sotomayor joined the majority opinion, agreeing that many questions could be left for another day “because the government’s physical intrusion on Jones’s Jeep supplies a narrower basis for decision.”  But she left little doubt that she would have joined Justice Alito’s analysis had the issue he addressed been the exclusive one presented in the case.  “Physical intrusion is now unnecessary to many forms of surveillance,” Justice Sotomayor wrote.  She added that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”  “People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries and medications they purchase to online retailers,” she wrote. “I, for one, doubt that people would accept without complaint the warrantless disclosure to the government of a list of every Web site they had visited in the last week, or month, or year.”  Justice Alito listed other “new devices that permit the monitoring of a person’s movements” that fit uneasily with traditional Fourth Amendment privacy analysis.  “In some locales,” he wrote, “closed-circuit television video monitoring is becoming ubiquitous. On toll roads, automatic toll collection systems create a precise record of the movements of motorists who choose to make use of that convenience. Many motorists purchase cars that are equipped with devices that permit a central station to ascertain the car’s location at any time so that roadside assistance may be provided if needed and the car may be found if it is stolen.”

 

By ADAM LIPTAK

Ambushed

Readers will recall that I have said that I would be keeping an eye on the progress of the Historic Child Abuse Committee of Inquiry and the Electoral Commission. Apart from a question without notice from Deputy Shona Pitman to the Chief Minister on 6^th December who said it was a priority matter, nothing else has been forthcoming. I had anticipated that either a question on the matter would have been lodged for yesterday’s Sitting or perhaps the Chief Minister would have made a statement updating everyone on the steps taken to get the ball rolling. It is apparent that for many Members and the Council of Ministers that the Inquiry is not a priority. Hopefully someone will be lodging a question for the next Sitting.

True to form States Members considered the Electoral Commission to be the priority. This is not only evident from the media coverage given to the Members who seek to overturn a States decision but also (thankfully) to the fact that two questions were lodged and asked in the States yesterday.

During yesterday’s Question Time Deputy Trevor Pitman called for the resignation of Chief Minister because of his apparent U-turn and support for Senator Bailhache to chair the proposed Electoral Commission. I believe Trevor should have been calling for the resignation of the Chairman and his PPC Committee for failing to comply with the decision made by the States last March.

It might be a bit tough on Simon Crowcroft, Judy Martin and Monty Tadier because they have been ambushed by two Members that Simon proposed for his Committee, namely Len Norman and Sarah Ferguson. One wonders whether before nominating them they were questioned about their support for the Electoral Commission as both had voted against it last March.

Daniel Wimberley’s proposition P15/2011 which called for an Independent Commission was approved by the States on 15^th March. It is important to note that the States also approved parts (c) and (d) of the proposition which are as follows;

Part (c) requested the Privileges and Procedures Committee, after consultation, to bring forward proposals for debate ahead of the debate on the Annual Business Plan 2012 detailing the proposed composition of the Electoral Commission, its anticipated costs, and how it was to be funded;

Part (d) requested the Privileges and Procedures Committee to take the necessary steps to identify, through a process overseen by the Appointments Commission, the proposed membership of the Commission for subsequent approval by the Assembly on a proposition lodged by the Privileges and Procedures Committee.

It is quite clear what PPC was requested to do and in my view it should be complying with the States decision. If some PPC members do not wish to comply it is perfectly acceptable for them to record their dissent and if they choose to they could lodge their own amendments to the proposition. I listened to yesterday’s question time and heard Deputy Judy Martin say that she is working on amendments to PPC new proposals. Thankfully Judy is drafting the amendments but they should be drafted by the dissenters.

Letter to JEP

It appears that the three topics in my last Blog are alive and kicking.

Re "Golden Handshakes"

I noted that in letters appearing in the JEP and in other Blogs that the authors were disappointed at Senator Gorst's stance and he had lost the opportunity of making it absolutely clear that the days of confidential golden handshakes are over. It is highly probable that confidentiality clauses were part of the latest deals so Senator Gorst's hands could have been tied, however it does not say a lot for those Minister's who allowed the clauses to be inserted in the first place. Hopefully that is a matter which Senator Gorst will address and the days of secret deals are over.

Electoral Reform.

PPC has met albeit with two members missing and Daniel Wimberley's proposition on the Electoral Commission was on the agenda. Given PPC's composition the outcome was pretty much as predicted as both Senator Ferguson and Connetable Norman had opposed the original proposition. I was amused to read that it was inferred that there that are no "intelligent" people outside the Island because so much time would be spent trying to explain how the Island works, explaining the history and explaining what a Constable is. If that is the case then one hopes that potential Commissioners are asked those questions and their answers made public. Does any one really know the answers?

I am sure that I will not be the only one waiting to read the proposed proposition which have to seek a recindment of the original proposition. Hopefully there will be sufficient "intelligent" States Members who will stand by the original decision and ensure that the Commission's composition is truly independent and excludes States Members.

Historic Abuse Inquiry.

Readers will be aware that Senator Le Marquand has published a statement which seeks to clarify his position on a number of points about the investigation which might have been confused by “exaggerated” media reports. However there was no mention as to why it was not a joint statement along with the Scrutiny Panel and why it was so late. One can understand why the Jersey Care Leaver Association is claiming that the statement is "too little too late."  

A report on the statement's release appeared in the JEP under the headline Historical Inquiry a "no brainer." Whilst there was no mention of the Inquiry in the statement it is apparent that the JEP reporter was of the view that Senator Le Marquand was implying that by attempting to put the record straight there was no need for an Inquiry. In an attempt to clarify the situation I submitted a letter to the JEP which it has kindly agreed to publish in today's JEP and also appears below.

"I am sure that those who have been following the Historic Abuse Investigation will have welcomed Senator Le Marquand’s very belated statement in which he wishes to clarify his position on a number of points about the investigation which might have been confused by “exaggerated” media reports.   I doubt that I am the only person who sees the Ministers recent statement as a carefully crafted attempt to shift the position of the Island’s leadership in relation to the Historic Abuse Enquiry, from one of seeming hostility to that of grudging acceptance.   No doubt that the prospect of a full independent Committee of Inquiry with a mandate to examine the role of Government has helped to focus minds.

There can be few people who would not agree that the media did send out mixed messages and some of the reporting was sensationalised beyond recognition. Not only was it harmful to those involved with the investigation but also to the Island as a whole. Readers will recall the “statements of condemnation” made by the former Senator Walker and Bailiff Sir Philip Bailhache in their 2008 Liberation Day speeches.

Whilst welcoming Senator Le Marquand’s one small step towards acceptance that the media had been unduly negative in particular to Mr Power and Mr Harper, it appears from the JEP report that the purpose behind Mr Le Marquand’s statement was to scuttle the proposed Committee of Inquiry as approved by the States last March. This is evident by the headline which reads Historical Inquiry a “no brainer.”

I have read Senator Le Marquand statement but there is no mention of the proposed Committee of Inquiry. Also in fairness to readers and Senator Le Marquand it should be noted that the proposed Inquiry was never intended to examine whether the historical abuse investigation should have been launched.

I will take issue with the Senator when he states that the definitive reports into the investigation were the two reports of the Wiltshire Police. Those reports were prepared for the sole purpose of building a case for disciplinary proceedings which the Minister himself abandoned without a charge being brought.  In the interest of natural justice they should never have been made public because neither Mr Power nor Mr Harper were able to defend the unsubstantiated allegations.

The two definitive reports are the Association of Chief Police Officers (ACPO) reports which are in the public domain and the Metropolitan Police’s which was commissioned by Mr Warcup and Mr Power two months before his suspension. That report in particular sets out the justification for the investigation so therefore does not need to be included in the Committee of Inquiry and should not been seen as a reason to try to prevent the Inquiry going ahead as planned.   The Inquiry is about the victims and survivors and is intended to review the running of the Homes, their oversight and what if any action had been taken when allegations of abuse were made.

It might be unpalatable for some people but if it had not been for the professionalism and integrity of Messrs Power and Harper, the historic abuse cover up would have continued. Perhaps that is what some people would have preferred."

Given the degree of urgency being expressed at getting the Electoral Commission, one hopes that the same degree of urgency will be given to getting the Abuse Inquiry underway. Perhaps there will be questions lodged for the States Sitting on 17th January.

.

 

Curtains Up

Readers will recall that I established my Blog last August to compliment my election. At the conclusion of my last posting, The Final Curtain on 1^st December I said that as I was no longer a States Member I had no right for my Blog to be called the Deputy Bob Hill Election Blog therefore that posting would be my last contribution in its present form.

Over the past months I have noted an increasing number of visits made to my blog not only by Island residents but by people world wide. I have also become aware of the increasing number of requests for me to continue with my Blog.

When giving due consideration to the matter I have decided to continue with my Blog albeit with a slight change of blog address. I hope that readers will appreciate the comments I hope to make in the ensuing months. Although I am no longer directly involved with the Island’s politics it does not mean that I no longer have an opinion or a voice.

Historic Abuse Inquiry.

I will begin by saying that I will be keeping an eye of the progress of the promised Committee of Inquiry into the Historical Child Abuse. It should be recalled that it was on the 2^nd of March last year that the States approved Senator Le Gresley’s proposition P19/2011 as amended by Deputy Tadier and my amendments. Verita who was commissioned to produce a report along with recommendations submitted it to the Council of Ministers at the beginning of November. Having been given a copy of the Report I believe that it contains nothing which is sensitive and as a commitment to open government it should be made public immediately after it has been considered by the Council of Ministers.

At the States Sitting on 6^th December, in his answer to a question without notice from Deputy Shona Pitman, Senator Gorst said that the matter was a priority for the Council of Ministers and was hoping that the Terms of Reference would come to the States within the first quarter of 2012. Let us hope that the date does not slip even further back.

Justice is too important to be left in the hands of the victims/survivors and their supporters, it involves society as a whole. I congratulate Mr and Mrs Lawrence for never giving up in their pursuit for justice. Cover ups appear in every society and it takes courage and endurance to expose it. The Lawrence case exposed many shortcomings in the English legal and policing systems yet there has been strong resistance to change. It has also been said that lessons have been learnt, but have they?

Electoral Commission

It has been reported that Senator Gorst is considering appointing Senator Bailhache to head the planned Electoral Commission into States Reform. Daniel Wimberley’s proposition P15/2011 was quite specific in that the Commission should be independent. I hope that Senator Gorst who along with 28 other Members supported the proposition will ensure that no sitting States Member is a member of the Electoral Commission. The same can be said for the Committee of Inquiry. I don’t know how many times I have heard the phrase “Lessons have been learnt” in connection with incidents in Jersey. If any lessons have been learnt, one of the first should be learning what independent and impartial means.

Golden Handshakes.

I was amused to read that the JEP is disappointed by its failure to obtain details of the “Golden Handshakes” given to a number of civil servants. One wonders where their journalists have been for the past three years. If States Members have been denied the information why should the JEP consider itself to have preferential treatment? What support did the JEP give to those “Meddling” States Members who had the audacity to attempt to obtain the details or indeed raise the matter?

Interestingly it appears that Connetable Crowcroft backs the JEP over the matter. It is a pity that the JEP did not back the Connetables proposition P182/2008 lodged in November 2008 requesting a review of procedure regarding the suspension of the former police chief. Had it done so, the review would probably have saved the tax payer around £2million and countless hours of States Members’ time. It may have also saved at least one golden handshake.