Blog I Blog 2 will know that the long awaited Hampshire Police report was due in early December. However it is quite evident that the report was received some time ago because three of the officers involved with the case are currently defending their corner via a Discipline Board.
The decision to charge the officers is a “U Turn” because on 8th December 2009 when asked by the then Deputy of St John Phil Rondel whether any action was being taken against the senior officer in charge of the officers who operated off Island the Home Affairs Minister Senator Le Marquand said “I am not aware of any intention on the part of the acting leadership of the police force to take disciplinary action against anybody in relation to this matter. I explained in some interviews which I did in the last 2 weeks or so that although policy is that officers should operate within the law in whatever jurisdictions they are acting, there may be circumstances, and it will be exceptional circumstances, which would warrant operating outside the law, particularly if there were major public safety issues to do with terrorism or things of that nature. These would be wholly exceptional circumstances, but nevertheless they exist and matters of this nature must be judgements to be made by individual officers in particular cases. Those judgements should be made with extreme caution of course and the presumption is very much against acting unlawfully.
However in May last year in answer to a similar question Senator Le Marquand stated that the new Police Chief had a different view and had instigated the investigation, he had been informed of the decision and was fully supportive of it.
Obviously there must be a reason for the “U Turn” and what if any pressure was put on the new Police Chief. Could a clue be found in the annual report of the Investigatory Powers Commission for Regulation of Investigatory Powers (Jersey) Law 2005 and Police Procedures and Criminal Evidence (Jersey) Law 2003 published on 7th June last year via R69/2011.
The Regulation of Investigatory Powers (Jersey) Law 2005 requires a Commissioner to carry out an annual review and publish a report. The Law also imposes a duty on a large number of office holders and individuals, listed in Article 44(1) (a)–(n), to disclose or to provide to the Commissioner any document or information which the Commissioner may require to enable him to carry out his functions under the 2005 Law; and Article 39 imposes a specific obligation on the Attorney General to notify the Commissioner at least every 12 months of authorizations for intrusive surveillance which he has granted, renewed or cancelled.
If the Commissioner becomes aware of any contravention of the provisions of the 2005 Law or if he considers that any of the arrangement made under Article 19 are inadequate, he is required to bring the contravention or those inadequacies to the attention of the Bailiff in a Report in respect of his functions which he must make to the Bailiff as soon as possible after the end of each calendar year (Article 44(4)). Such a Report must be laid before the States.
However if it appears to the Bailiff, after consultation with the Commissioner, that the publication of any matter in such a Report would be contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic well-being of Jersey or the continued discharge of the functions of any Public Authority whose activities include activities which are the subject of review by the Commissioner, the Bailiff may exclude that matter from the copy of the Commissioner’s Report laid before the States (Article 44(7)).
Readers of my two Blogs will recall that in July 2007 the Attorney General was aware of the illegal bugging of a vehicle used by the Curtis Warren’s gang on the Continent. The matter was before the Court in March 2008 and October 2009 yet there is no mention in the 2008/9/10 Reports, one may ask why because the matter was in the public domain and does not appear to fall within the criteria above.
On page 12 in R69/2011 the Commissioner states “In July 2007, certain events occurred which are relevant to my function as Commissioner. In Reports since that time, I have indicated that I considered it appropriate to delay comment on that matter until all judicial proceedings had been completed. Now that the Advice of the Privy Council has been given, I must report on the matter.
If one reads the 2008/9/10 Reports there is no mention of the July 2007 events so how can the Commissioner claim that he considered it appropriate to delay comment until all judicial proceedings have been completed. Having read the Reports it is evident that he did not comment but neither did he make any reference to the matter. Also not all of the judicial proceedings are completed because according to media reports Curtis Warren has referred his case the Court of Human Rights.
I am perplexed by the Commissioner Sir John Nutting’s claim, does he not have a duty to be even handed and not have waited until the Privy Council had delivered its verdict. One may ask why wait 4 years before seeking assurances from the police that they will not deliberately disregard the regulations. Why wait 4 years to get an assurance from the Law Officers that should there be a repetition of a deliberate act done in contravention of either Law, they will not introduce into evidence the products of such illegality at any subsequent trial.
It is now some five and a half years since the arrest and as mentioned above, three police officers are facing disciplinary charges, why has it taken so long and is the process fair and consistent? I stand corrected but I believe that no disciplinary action was taken against the officers involved with the unlawful entry into the home of the former Senator Syvret. Apparently the three officers are facing disrepute charges, so why did the officers who broke into Mr Syvret's home not face the same charge? Who makes the decision to instigate disciplinary action and is the public interest ever taken into account?
I am not defending the officers involved with the arrest of Curtis Warren and co, but if the Law had allowed for an audio device to be installed, it is likely that the officers would have been commended for their initiative and persistence. However now over 5 years later they find themselves facing discipline charges. Why has it taken so long to instigate charges?
It seems that when the States Police wish to bring charges against certain officers, expense does not come into the equation and goodness knows how much the current discipline case will cost the taxpayer and will anyone be taken to task if the officers are exonerated?
At the States Sitting on Tuesday Deputy Tadier asked Senator Le Marquand whether the investigation had been completed and if so, would he make the outcome known.
As usual Senator Le Marquand was guarded with his answers and clearly would not be drawn. What is evident is that the arrest has incurred considerable expense and the disciplinary process will just add to it but the Minister did know of the cost.
One other important matter which seems to have been ignored is what is being done to ensure that police officers are not faced with the same difficulties when attempting to perform their duty especially when on the Continent.
I go back to the former Deputy of St John’s question on 8th December 2009 when he further asked Senator Le Marquand; “Given that crime has no boundaries and the Jersey Police have to operate outside of the law in France, Holland and Belgium in the Warren Gang Inquiry, what action is the Minister taking to put in place reciprocal agreements on crime with the European Union so our police do not fall foul of the law in other E.U. (European Union) states. If none please explain why none has been put in place and if he is, would he please give us an update of when he is on putting something in place?
Senator Le Marquand replied “I am not under the impression that formal agreements are required in relation to such matters. It is always open to Jersey law enforcement agencies, which would include Customs and Immigration, to work in co-operation with their colleagues in other jurisdictions. That would be the normal route in my view, but no formal agreements are required for that to take place.
The Bailiff intervened and added “If I may assist you Deputy, it is more a matter for the Law Officers who would pursue such a request on behalf of the police.”
Police Officers particularly on front line duty should not be placed in invidious positions which may lead them to break the law to arrest offenders. It is therefore incumbent on people holding more senior positions to ensure that Laws are amended so officers are not hamstrung.
In the meantime, the case against the three police officers will continue, Curtis Warren will continue with his appeal both of which will be funded by the taxpayer. Life is not fair and no doubt the police officers and the Curtis Warren gang will be feeling aggrieved along with the long suffering public who is footing the bill.
I titled my Blog published on 17th October “More questions than Answers” there are indeed many questions which remain unanswered. What advice was really given by the Crown Officers in July 2007 and has there been an internal enquiry, why was the decision taken to prosecute, why did the judges decide to let the case proceed, why did the Commissioner remain silent, why the police “U Turn” to take disciplinary action, what is it costing and where is funding coming from, whats steps have/are being taken to ensure that police officers are not placed in the same position etc.
The answers to questions asked and answers on Tuesday were not satisfactory, hopefully as events unfold satisfactory answers will ensue.