Thursday 13 December 2012

Curtis Warren-- Questions still Unanswered?

Those who have read my two Blogs relating to Curtis Warren 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.



  1. Bob
    This sort of problem will always cause controversy. I suppose it comes down to the usual dilemma of ends justifying means. But you do raise the important issue of why it has taken so long, particularly in view of the apparent discrepancy in the Commissioner's reasoning.
    However, my prime concern is the role of the Law Officers. I might be wrong, but it is my understanding that the police officers concerned asked for and obtained advice from a member of the Law Officers Department - a Crown Advocate I think - before bugging the vehicle. If this is the case, then it was that Law Officer who was responsible for giving the police officers the authority to proceed.
    Maybe some form of disciplinary action is being taken against the Law Officer but I haven't heard about it.
    Of course, I might be quite wrong about the role of the Law Officers in this issue. Do you know the answer?

    1. If you listen to the recording (below) of Deputy Monty Tadier's questions on Tuesday who asked if Senator Le Marquand knew if any action had been taken, he said he did not know. Hopefully some one may lodge a question to the AG to find the answer.

  2. Bob.

    A further question is will the Hampshire Report be made public by the Home Affairs Minister Senator Ian Le Marquand? Not only did he make the Wiltshire Report against Graham Power QPM public but he went on a media roadshow with it!

    Is the HA Minister going to show consistency and go on a media roadshow with the Hampshire report?

    1. A good question and one which deserves an answer from Senator Le Marquand. Personally I hope that the discipline issues are not published. It was wrong to publish the Wiltshire Report and two wrongs do not make a right.

  3. Hi Bob.

    If you or your readers would like to Hear Deputy Tadier's Question in the States on Tuesday Which was.

    15. Deputy M. Tadier of St. Brelade will ask the following question of the Minister for Home Affairs –

    “Was the Hampshire Police investigation into the circumstances leading to the arrest of Curtis Warren and others due to be completed in December this year, and, if so, will the Minister inform Members whether the investigation has been completed and, if so, will he make the outcome known?”

    You can Listen to it HERE


  4. Thanks for the link, it is well worth a listen.

  5. ---Private----Dear Bob, Matthew Jowitt was the man who I believe told the police to carry out the bugging. He has not been held to account. Minty took the advice he was given from Matthew Jowitt. Matthew is one of the untouchables! in with Sir Birt and Philip Bailhache. Look into this and you will get more answers than you thought possible.

  6. I think it would be helpful to have a good read of pages 12 to 19 of the Commissioner's Report above.

    On page 16 one will see the following;

    Thirdly, to some extent the unwise advice of Crown Advocate Jowitt
    mitigated the gravity of the misconduct of the police. The officers must have felt encouraged and heartened by that advice.

    Fourthly, there was no attempt to mislead the Jersey court. It was always understood by the police that the circumstances in which the evidence was obtained would be revealed to the appellants and that the court would be required to decide whether to refuse to admit the evidence under article 76(1)of the 2003 Law. The police knew that the court would decide whether to
    refuse to admit the evidence on the grounds that “having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would so adversely affect the fairness of the proceedings that the court ought not to admit it” (emphasis added). The court would be the arbiter on the fairness of admitting the fruits of the misconduct.

    It is evident that whilst the police had bugged the car they made that fact clear to the Court. Was is not stated, but in my view should have, is that the officers did not make the decision to charge Curtis Warren and his gang. That decision was taken by the Crown Officers Department whose head is the Attorney General. There is no independent Prosecation Service in Jersey.

    If one reads the extract below which can be found on page 19, one will note that Commission convened a meeting with the Attorney General and the relevant police officers and also met the new police chief. There is no mention of the Commissioner meeting Advocate Jowitt, why? Surely if he was to get to the root of the matter all relevant officers should have been interviewed.

    "In the light of the decision of the Privy Council, I convened a meeting with the Attorney General and the relevant police officers and I have also met the new Chief Officer of Police."

  7. Dear Bob, my simple question is 'why is Matthew Jowitt not being brought to account?". A simple question and above does not answer it I am afraid. What safe guards are in place to ensure this never happens again, sadly it already has. I know of a case where it has.

    1. I agree that it is a simple question and as mentioned above, it appears that not even the Commissioner asked the Advocate to account for his actions.

      According to the Commissioner he is satisfied that the police will not breach the Regulations again and neither will prosecutions be advanced if evidence is obtained unlawfully. Therefore if you have evidence that the Commissioner's recommendations are not being adhered you could inform whoever is being prosecuted of the contents of R69/2011.

  8. I also might add that this is in the interest of the public to see people like Matthew Jowitt brought to account and for him to answer why he felt it appropriate to advise people like Minty to bug a car with no legal standing as above. I have no time for drug dealers but I am afraid that the legal system in Jersey needs serious investigating and correct checks in place. Also to 'stop' Judges sitting on cases that they have huge conflict of interest in (Bailhache and Birt) to name but a few. And an independent Prosecution Service in Jersey that 'is independent' Judges that come over from the UK to sit on cases in Jersey must not be 'wining and dining with the establishment'. They are there to do a job which is to be independent. In addition we must also look at the Jurat's, why are there no ordinary people from all walks of life being selected? A long list of questions I am afraid and unless we ask them and really set out a good and honest debate will Jersey ever be rid of the 'huge conflicts' that I am afraid have caused the above to happen and to safeguard for future generations. Money spent on looking at this is money worth spent in making sure that the legal system in Jersey is held to account and is fair and honest.


    1. I don’t think one has to lift the carpet too high to find that there are a number of anomalies with our prosecution system which seems to be hanging onto a thin rope that is rapidly shredding.

      In 2002 Professor Rutherford conducted a Review of Criminal Justice Policy in Jersey and made a number of recommendations some of which have not been advanced or in somes cases rejected. In 2007 I lodged a proposition P118/2007 in which I was seeking States approval to request the Minister of Home affairs to commission an independent audit of the human rights implications of its decision to reject Rutherford’s recommendation to create a public prosecution and that the role of the Centenier in the Magistrate’s Court should cease.

      Unfortunately I received little support and my proposition was heavily defeated. What is interesting is that a couple of years later when I was Chairman of a Scrutiny Panel we commissioned a Human Rights audit on the Centenier’s role. The finding known as the Cooper Opinion was that the role was not HR compliant. The good news is that changes ensued.

      Failings in the system are slowly emerging via the Blogs; I think the Warren case is an example of failings in the system. The outcome of the Police Disciplinary hearing and Curtis Warren’s appeal to the HR Court particularly, if they go in favour of the police officers and Warren may well lead to positive changes in Jersey.

  9. I agree that it is a simple question and as mentioned above, it appears that not even the Commissioner asked the Advocate to account for his actions.

    According to the Commissioner he is satisfied that the police will not breach the Regulations again and neither will prosecutions be advanced if evidence is obtained unlawfully. Therefore if you have evidence that the Commissioner's recommendations are not being adhered you could inform whoever is being prosecuted of the contents of R69/2011.

  10. Dear Bob, so 'the untouchables' are again getting away with it. What I fail to understand is how Matthew Jowitt is not being brought to account. Is it because he is being protected? by whom? who does he answer to? why don't we have an independent prosecution service, why is this idea not being looked at. We have a legal system consisting of Jurat's. Few of us understand and they hold so much power. Can a good solid debate be brought to the politicians and use the Curtis Warren case when discussing the issues and how to look at a procedure that means it does not happen again. As we have the historic enquiry happening, get our politicians inflamed and working on the real issues such as the ones I have mentioned and make real change...I also believe that a juror was approached during the Curtis Warren trial by a policeman. Why has that not been discussed? again it proves that the legal system is not fit for purpose..... sorry, the Island of my birth, not fit for purpose....

    1. I can understand and share your frustration, one should have confidence in the criminal justice system and clearly the Warren case has thrown up some serious questions. My Blogs and readers comments have high lighted concerns but it will take a few "champions" to force change but regretfully there are too few around.

  11. Dear Bob, I am no politician I admire those who are! who believe in the people who elected them as the elected believed in them. I sincerely pray that it will take 'champions' to get this debate started. However it will only take 'one champion' to begin it! Politicians who read this remember one thing ' it takes one person to start change' it takes a leader to begin the debate. What people want and have the right to want is an Island that has a fair and open legal system, for future generations. That Jurats should be people who represent the majority of the Island and are from all walks of life, not just the chosen few. One person that's all it takes, a leader to bring this debate 'The Curtis Warren' case to the front of the debate and use this opportunity and example of 'where Jersey got it wrong' as in so many other occasions! The example of moving forward the Child abuse enquiry means Jersey can move forward, lets see the legal system move in that direction, now!

  12. Dear Bob, it seems like it's just you and me on this blog, where are the rest of you! come on, lets make it happen. the only one stopping us is 'us'.

  13. I am sorry to add to your pessimism but the Historic Abuse TOR is flawed, steps are in hand to lodge amendments but that does mean that they will be approved.

  14. Dear Bob, will victims of abuse ever find peace unless the Historic Abuse enquiry is made in it's whole entirety! Jersey's last chance to do the 'right thing'. Jersey can be an example or a disgrace to the world, it's upto Jersey and it's politicians to at last do the 'right thing'. This opportunity can also show how Jersey can hold open, honest and fair debates and really address issues such as the legal system, how unfair the system for Bailiff is and the fact that Jurat's are not from a range of different walks of life. And the fact that we may end up with two brother's running the Island! this is something we must address and deal with. The Historic abuse enquiry is the beginning of facing the past to deal with the present. I hope all politician's are reading this and can see that 2013 is a year of 'doing' not talking...... there is no point pretending things won't happen, Jersey has done this for too many years! it's time to face things and deal with them. Plemont has proved it can be done and has been done, a proper, fair and open debate that if used as an example can achieve so much more.

  15. Jersey's history is full of such inadequacies and examples of justice denied.
    It's almost part of the famous "way of life".
    But for the fisrt time "Jersey Reform Day" will be celebrated as an OFFICIAL day on 28 September 2013.
    This will presnt an oportunity for many aspects of Jersey history and culture to be aired in a way which has never happened before.
    So we hope that you and your thousands of readers will participate and bring all sorts of novel ideas into play because this should be an "all Island" event in which everybody can participate.
    NOW for initial details but be prepared to organise something for YOURSELVES.
    Think about it over the festive season.
    Best wishes

    1. Have now read your Blog and noted the date in my diary.
      Compliments of the season to you too.

  16. Dear Tom and Bob, I have noted the 28 September also in my diary, the day is for 'all people' of 'all walks of life' not just the chosen few! we must ensure this day is for everyone!

  17. As mentioned in my latest Blog, I am sure that Tom will be keeping people updated with events being organised for that day.