Thursday, 17 September 2009
Graham Power Complaints Board Hearing.
Yesterday there was a “complaints board” hearing against the Chief Ministers Office brought by (illegally?) suspended Police Chief Graham Power.
The complaint centred on “information” or “data” that Graham Power claims has been withheld from him by the Chief Ministers office concerning 3 letters he had received involving his suspension. Mr.Power wanted a simple question answered, and that was, when were these letters authored? Everybody knows what date was on them, but a simple task of looking on the computer where they originated from would let him know when the letters were created and modified etc.
A simple request one would think? Oh no it’s not! This is the pantomime of Jersey Government. If it proves these letters were created before November the 11th 2008 it might show that his suspension was orchestrated before (perhaps long before) the powers that be would have us, and him, believe.
The ensuing arguments at this complaints board hearing revolved round “what is data”? “what is information”? and equally pathetic (in my opinion) “barrel scraping” and embarrassing arguments made by the Chief Ministers’ legal representative Sylvia Roberts.
There was not a spare seat in the public sitting area, there were at least a dozen members of the public who were there to support Mr.Power and a number of them could not help themselves but laugh out loud when hearing some of Sylvia Roberts’ arguments. If there had of been a couch in the room, I believe everybody in that room, would have dived behind it cringing every time the Chief Ministers representative tried to defend the indefensible.
I reproduce below Mr Powers opening (oral) submission to the board, (the board already had his written submission) which was read out before any of the legal Wrangling took place and the frankly embarrassing attempt made by the Chief Ministers Department to look even half credible.
There was not a single member of the public, that I spoke to after the meeting, who believed the board could not find in favour of Graham Power. However this is Jersey, so literally anything is possible!
The submission below has been distributed to the local “accredited” media, have you seen it anywhere else?
ADMINISTRATIVE APPEAL HEARING.
WEDNESDAY 16TH SEPTEMBER 2009.
These notes have been made to assist the memory of the applicant when addressing the Board. No undertaking is given that they are the actual words used on the day. No responsibility is taken by the applicant for the accuracy of the content of these notes. If the notes are used by any other person as part of an account of what occurred at the hearing it is for that person and not the applicant to take responsibility for the accuracy of whatever is written or said.
1. MR CHAIRMAN, MEMBERS OF THE BOARD. IN THIS MATTER I AM REPRESENTING MYSELF BUT AS YOU CAN SEE I AM ASSISTED AND ADVISED BY THE CONNETABLE OF ST HELIER WHO HAS AN INTEREST IN THE ISSUES BEFORE THE BOARD TODAY.
2. IT IS MY UNDERSTANDING OF TODAYS PROCESS THAT THE PAPERS PREPARED FOR THE BOARD AND CIRCULATED IN ADVANCE CAN BE TAKEN AS READ AND THAT WHAT THE BOARD REQUIRES FROM ME IS A SHORT SUMMARY OF THE ESSENCE OF THE COMPLAINT. THAT BEING THE CASE I HOPE THAT THE FOLLOWING WILL SUFFICE AT THIS TIME. I WILL OF COURSE ATTEMPT TO ANSWER ANY QUESTIONS WHICH THE BOARD MAY HAVE IN RELATION TO THE MATTER.
3. TODAYS HEARING RELATES TO AN APPLICATION MADE UNDER THE CODE OF PRACTICE ON ACCESS TO INFORMATION HELD BY THE STATES AND STATES DEPARTMENTS. THE COMPLAINT IS MADE BECAUSE I HAVE MADE AN APPLICATION FOR THE DISCLOSURE OF INFORMATION TO THE CHIEF MINISTER WHICH THE CHIEF MINISTER HAS REFUSED. THE CODE PROVIDES THAT IN SUCH CIRCUMSTANCES AN APPLICANT MAY APPEAL TO THIS BOARD.
4. AS THE BOARD IS TO HEAR BOTH SIDES OF THIS ARGUMENT IT MIGHT BE HELPFUL AT THIS STAGE IF I WAS TO SET OUT MY UNDERSTANDING OF THE BURDEN OF PROOF IN RELATION TO A REQUEST FOR INFORMATION. PARAGRAPH 1.2.2.(a) OF THE CODE STATES THAT IN THE APPLICATION OF THE CODE THERE SHALL BE A “PRESUMPION OF OPENESS.” I HAVE TAKEN THAT PRESUMPTION TO HAVE THE SAME MEANING AS SIMILAR PRESUMPTIONS IN LAW WITH WHICH MANY OF US ARE FAMILIAR. FOR EXAMPLE THE PRESUMPTION OF INNOCENCE IN A CRIMINAL TRIAL MEANS THAT INNOCENCE IS ASSUMED UNTIL GUILT IS PROVED. OR TO PUT IN ANOTHER WAY, IT IS THOSE WHO ASSERT GUILT WHO CARRY THE BURDEN OF PROOF.
5. SIMILARLY I SUGGEST, THE PRESUMPTION OF OPENESS SET OUT IN THE CODE BEFORE US TODAY HAS THE SAME EFFECT. THAT IS, AN APPLICANT IS ENTITLED TO THE INFORMATION REQUESTED UNLESS THE CONTRARY IS PROVED. NO APPLICANT HAS TO PROVE WHY HE OR SHE SHOULD HAVE INFORMATION HELD BY A DEPARTMENT OF THE STATES. IT IS FOR THE STATES DEPARTMENT TO PROVE, TO AN ACCEPTABLE STANDARD, THAT THERE ARE GOOD REASONS WHY INFORMATION SHOULD BE DENIED. IN OTHER WORDS THE BURDEN OF PROOF IN TODAYS BUSINESS SITS WITH THE CHIEF MINISTER.
6. MR CHAIRMAN, THE COMPLAINT BEFORE THE BOARD TODAY TOUCHES ON ONE ADMINISTRATIVE ASPECT OF AN EVENT WHICH HAS NEVER HAPPENED BEFORE IN THE HISTORY OF THIS ISLAND, NAMELY THE SUSPENSION FROM DUTY OF THE CHIEF OFFICER OF POLICE. THE APPLICATION MADE TO THE CHIEF MINISTER, AND NOW SUBJECT OF TODAYS HEARING RELATES TO THE DOCUMENTATION USED IN CARRYING OUT THAT SUSPENSION, WHICH CONSISTS OF THE THREE LETTERS WHICH CAN BE FOUND AT TAB 4 IN THE BUNDLES. ALL THREE LETTERS ARE DATED 12TH NOVEMBER 2008. THE REQUEST WHICH IS SUBJECT OF TODAYS HEARING IS A SIMPLE ONE. IT IS FOR THE CHIEF MINISTER TO PROVIDE THE TIME AND THE DATE ON WHICH THESE THREE LETTERS WERE ACTUALLY CREATED.
7. MR CHAIRMAN, THE OTHER DOCUMENTS IN THE BUNDLE SET OUT WHAT I THINK, IN THE INTERESTS OF BREVITY, WE MIGHT CALL THE “OFFICIAL VERSION” OF THE PROCESS WHICH PRECEDED THE SUSPENSION. THE OFFICIAL VERSION, SET OUT IN STATEMENTS AND OTHER DOCUMENTS, IS THAT ON TUESDAY 11TH NOVEMBER 2008 THE MINISTER FOR HOME AFFAIRS, WHO AT THAT TIME WAS DEPUTY ANDREW LEWIS, RECEIVED CORRESPONDENCE AND VIEWED A PRESENTATION WHICH IS SAID TO HAVE GIVEN HIM CAUSE FOR CONCERN REGARDING THE MANAGEMENT OF THE HISTORIC ABUSE ENQUIRY. IN CONSEQUENCE OF THIS INFORMATION HE DECIDED TO INVOKE THE DISCIPLINARY CODE FOR THE CHIEF OFFICER OF POLICE. IF TRUE, THE ACCOUNT OFFERED BY FORMER DEPUTY LEWIS WOULD AT LEAST HAVE THE MERIT OF FOLLOWING THE PROPER SEQUENCE OF EVIDENCE BASED DECISION MAKING, THAT IS, THE EVIDENCE IS CONSIDERED FIRST, AND THE DECISION TAKEN AFTERWARDS.
8. IT IS AGREED BY ALL PARTIES THAT DEPUTY LEWIS ARRANGED TO MEET WITH ME IN THE PRESENCE OF THE CHIEF ECECUTIVE TO THE COUNCIL OF MINISTERS THE FOLLOWING MORNING, THAT IS THE MORNING OF WEDNESDAY 12TH NOVEMBER 2008, WHEN I WAS SUSPENDED FROM DUTY AND THE DOCUMENTATION, SUBJECT OF THIS APPLICATION WAS PROVIDED (ALTHOUGH THE BOARD WILL SEE THAT ALTHOUGH ONE OF THE THREE LETTERS ARRIVED BY POST TWO DAYS LATER, IT IS CLAIMED BY THE CHIEF MINISTERS DEPARTMENT THAT IT WAS AVAILABLE AT THE TIME.)
9. I AM SURE THAT THE BOARD WILL BE AWARE THAT THE INITIAL SUSPENSION HAS BEEN SUBJECT OF SOME CONTROVERSY AND THAT AN APPLICATION WAS MADE FOR A JUDICIAL REVIEW. THAT APPLICATION WAS OVERTAKEN BY A REVIEW CARRIED OUT BY THE CURRENT MINISTER FOR HOME AFFAIRS, BUT NEVERTHLESS, IN ITS JUDGEMENT, THE ROYAL COURT RECORDED THAT ALTHOUGH IT WAS NOT ABLE TO RULE ON THE ORIGINAL SUSPENSION IT FELT CONSTRAINED TO RECORD ITS SERIOUS CONCERN AT THE PROCEDURE FOLLOWED IN THAT ACTION.
10. THE APPLICATION TODAY IS INTENDED TO ASSIST IN A FUTHER EXPLORATION OF THE CIRCUMSTANCES OF THE FIRST SUSPENSION, AND IN PARTICULAR THE VALIDITY OF THE OFFICIAL VERSION OF THE SEQUENCE OF EVENTS. THE APPLICATION IS PART OF A CHALLENGE TO THE ACCOUNT OF EVENTS WHICH HAS BEEN PUT FORWAD BY SENIOR CIVIL SERVANTS AND MINISTERS, ALL OF WHICH, IN DIFFERENT WAYS, SEEK TO MAINTAIN THAT THE EVIDENCE WAS VIEWED FIRST AND THE DECISION TAKEN AFTERWARDS. THAT OF COURSE WOULD BE VERY DIFFERENT FROM A PROCESS IN WHICH THE DECISION WAS TAKEN FIRST AND EVIDENCE SUBSEQUENTLY ASSEMBLED TO JUSTIFY WHAT HAD ALREADY BEEN DECIDED.
11. THE CHALLENGE MADE TODAY IS AN IMPORTANT ONE. IF IT TRANSPIRES THAT MYSELF AND OTHERS HAVE BEEN MISLED AS TO WHAT REALLY OCCURRED, THEN WE HAVE A LEGITIMATE CAUSE FOR COMPLAINT, WHICH WE MAY WISH TO PURSUE BY THE APPROPRIATE MEANS. SUCH A REVELATION WOULD ALSO HAVE IMPLICATIONS FOR THE CRIDIBILITY OF KEY WITNESSES IN ANY DISCIPLINARY ACTION WHICH MAY BE ATTEMPTED. IF WITNESSES ARE WILLING TO LIE ABOUT ONE THING, THEN THEY MAY BE EQUALLY WILLING TO LIE ABOUT ANOTHER, AND THEIR CRIDIBILITY IS UNDERMINED. FINALLY ON THIS ISSUE, BUT CERTAINLY NOT LEAST, THERE IS THE QUESTION OF THE INTEGRITY OF GOVERNMENT, AND THE DEGREE OF TRUST WE CAN PLACE IN THE STATEMENTS MADE, AND ASSURANCES GIVEN, BY THOSE IN EXECUTIVE POSITIONS.
12. MR CHAIRMAN, I HAVE, IN MY ARGUMENT TO THE BOARD, GIVEN REASONS WHY THE OFFICIAL VERSION OF EVENTS DOES NOT SEEM TO BE COMPATIBLE WITH THE KNOWN FACTS, AND WHY IT IS REASONABLE TO SUSPECT THAT THE KEY EVENTS TOOK PLACE IN A SEQUENCE WHICH IS DIFFERENT FROM THAT CLAIMED. THAT IS, IT APPEARS POSSIBLE THAT THE DECSION TO SUSPEND WAS TAKEN BEFORE 11TH NOVEMBER 2008, FOR REASONS AT PRESENT UNKNOWN, AND THAT THE REPORTS AND PRESENTATION ON THE 11TH WERE PUT TOGETHER TO JUSTIFY A DECISION WHICH HAD ALREADY BEEN TAKEN, AND TO SUPPORT A FALSE ACCOUNT OF THE DECISION MAKING PROCESS.
13. IT IS FOR THIS REASON THAT, SINCE THE VERY BEGINNING OF THIS ISSUE, I HAVE BEEN ENGAGED IN A SERIES OF PROCESSES TO DISCOVER THE ANSWER TO A SIMPLE QUESTION, NAMELY, WHEN WERE THE THREE RELEVANT DOCUMENTS ALL DATED 12TH NOVEMBER 2008 ACTUALLY CREATED? WHAT DOES THE TECHNICAL EVIDENCE, HELD BY THE RELEVANT STATES DEPARTMENT, SAY ABOUT THE TIME AND DATE OF THEIR CREATION. IT IS A SIMPLE AND UNCOMPLICATED QUESTION, YET IT IS ONE WHICH HAS BEEN PERSISTENTLY AND SYSTEMACTICALLY REFUSED BY A VARIETY OF MEANS OVER A PERIOD OF TEN MONTHS AND HAS STILL NOT BEEN ANSWERED. THAT MR CHAIRMAN AND BOARD MEMBERS IS WHY WE ARE HERE TODAY.
14. FROM THE PAPERWORK PROVIDED THE BOARD WILL BE AWARE THAT THE FIRST WRITTEN REQUEST FOR THIS INFORMATION WAS MADE ON 17TH NOVEMBER 2008 AND THAT THIS SAME REQUEST HAS BEEN REPEATED IN A VARIETY OF WAYS SINCE THAT DATE. THE CHIEF MINISTER, AND THOSE ACTING ON HIS BEHALF, HAVE PERSISTENTLY REFUSED TO ANSWER WHAT IS BY ANY STANDARD A SIMPLE QUESTION. IT IS IN CONSEQUENCE OF THAT REFUSAL THAT I HAVE EXERCISED MY RIGHT OF COMPLAINT UNDER THE ADMINISTRATIVE DECISIONS REVIEW LAW.
15. IF I MAY I NOW TURN TO WHAT I UNDERSTAND TO BE THE REASONS WHICH MAY BE OFFERED AS JUSTIFICATION FOR THE CHIEF MINISTERS REFUSAL TO MEET THE REQUEST.
16. I SEE FROM THE SUBMISSION OF THE CHIEF MINISTER AT PARAGRAPH 29 AND ELSEWHERE THAT IT WILL BE SAID THAT THE INFORMATION DOES NOT EXIST, IN THAT THERE IS NO STATEMENT OR OTHER DOCUMENT IN EXISTENCE WHICH SETS OUT THE DATES ON WHICH THE THREE LETTERS WERE CREATED.
17. YOU WILL SEE FROM MY OWN SUBMISSION THAT I HAVE ANTICIPATED THIS ARGUMENT AND SET OUT SOME REASONS WHY I THINK THAT IT IS INVALID. FIRSTLY, THE CODE REFERS TO “INFORMATION” AND YOU WILL SEE THAT I HAVE ARGUED THAT THIS PLAINLY APPLIES TO DATA HELD ON A COMPUTER, WHETHER THAT DATA HAS BEEN RETRIEVED OR NOT, AND THAT I SUPPORT THIS VIEW WITH AN EXTRACT FROM COLLINS DICTIONARY AT TAB 15, WHICH CLEARLY INCLUDES COMPUTER DATA WITHIN THE MEANING OF THE WORD “INFORMATION.” (REFER TO DOCUMENT.) INDEED, I SUGGEST THAT IF THE OPPOSITE VIEW WAS TAKEN THEN, IN THE MODERN AGE, THAT WOULD EFFECTIVELY MEAN THAT MUCH OF THE INFORMATION HELD BY GOVERNMENT WAS OUTSIDE OF THE RANGE OF THE ACCESS TO INFORMATION CODE, WHICH SURELY COULD NOT HAVE BEEN THE INTENTION OF THE STATES WHEN THE CODE WAS APPROVED.
18. SECONDLY, ON THIS PARTICULAR QUESTION, AND IRRESPECTIVE OF THE ISSUE OF THE MODERN MEANING OF THE TERM DATA, YOU WILL SEE THAT I HAVE ARGUED THAT, GIVEN THE PERIOD OF TIME DURING WHICH THIS INFORMATION HAS BEEN SUBJECT OF REPEATED APPLICATIONS, IT IS BEYOND BELIEF THAT AT NO TIME HAS ANYONE IN GOVERNMENT ASKED FOR A BRIEF OR REPORT, OR A DRAFT RESPONSE, ADDRESSING THE QUESTION OF WHAT WOULD ACTUALLY BE CONTAINED IN A RESPONSE TO MY REQUEST, SHOULD ONE BE PROVIDED. IT IS AGAINST THIS BACKGROUND THAT I NOTE, THAT THE CHIEF MINISTERS SUBMISSION ON THIS POINT, AT PARAGRAPH 29 AND ELSEWHERE, APPEARS TO BE ENTIRELY IN THE PRESENT TENSE. THAT IS HE SAYS THAT THERE IS NO DOCUMENT “IN EXISTENCE” WHICH GIVES THE INFORMATION. IT MIGHT BE THAT THE EXCUSIVE USE OF THE PRESENT TENSE IN THIS MATTER IS COINCIDENTAL. NEVERTHLESS IT IS NOT SO FAR CLAIMED BY THE CHIEF MINISTER THAT SUCH A BRIEF OR DOCUMENT HAS NEVER EXISTED DURING THE PERIOD OF THE APPLICATION. IT IS SIMPLY CLAIMED THAT IT DOES NOT EXIST NOW. I AM SURE THAT I CANNOT BE THE ONLY PERSON WHO FEELS TEMPTED TO ASK WHETHER, DURING THE PERIOD PRIOR TO THE COMPLETION OF THE CHIEF MINISTERS SUBMISSION THERE HAS BEEN ANY SUCH DOCUMENT IN EXISTENCE WHICH, FOR WHATEVER REASON NOW NO LONGER EXISTS. PERHAPS THE CHIEF MINISTER WILL SHORTLY TAKE THE OPPORTUNITY TO PROVIDE REASSURANCE ON THAT POINT.
19. I NOW TURN TO WHAT IS UNDERSTOOD TO BE THE SECOND OF THE CHIEF MINISTERS GROUNDS FOR RESISTING THE APPLICATION, THAT IS, THAT TO DO SO WOULD BREACH LEGAL PROFESSIONAL PRIVILEDGE. PERHAPS IT WOULD HELP AT THIS STAGE IF I WERE TO MAKE IT CLEAR WHAT I AM NOT ASKING FOR IN THIS MATTER. WHAT I AM NOT ASKING FOR IS ACCESS TO ANY LEGAL ADVICE WHICH MAY HAVE BEEN GIVEN OR RECEIVED. IF THE FORMER MINISTER FOR HOME AFFAIRS, AS IT NOW APPEARS THAT HE DID, TOOK LEGAL ADVICE BEFORE TAKING ACTION, THEN I DO NOT WANT TO SEE THAT ADVICE. I AM, TO PUT IT PLAINLY, NOT INTERESTED IN THE ADVICE THAT THE FORMER MINISTER ASKED FOR OR RECEIVED, I AM INTERESTED IN WHAT HE DID AND WHEN HE DID IT.
20. ADVICE IS ADVICE, WE ALL GET ADVICE FROM TIME TO TIME, AND IF WE HAVE DECISION MAKING POWERS TO EXERCISE, WE CONSIDER THE ADVICE AND THEN WE TAKE OUR DECISIONS.
21. I BELEIVE THAT THE DECISION MAKING PROCESS OF THE MINISTER FALLS SQUARELY WITHIN THE CODE. INDEED TO HOLD OTHERWISE WOULD HAVE A SUBSTANTIAL EFFECT ON THE WORKINGS OF THE CODE ACROSS THE PUBLIC SECTOR. IF IT REALLY IS BEING SUGGESTED THAT IN ANY MATTER IN WHICH, AT SOME STAGE BACK IN THE HISTORY OF A POLICY OR A DECISION, LEGAL ADVICE WAS TAKEN, THAT THE TAKING OF THE LEGAL ADVICE PUTS SUBSEQUENT ACTIONS OUT OF PLAY FOR THE PURPOSES OF THE CODE OF PRACTICE ON ACCESS TO INFORMATION, THEN AGAIN, THIS COULD EFFECTIVELY MEAN THAT MOST AREAS OF GOVERNMENT ACTIVITY WOULD FALL OUTSIDE OF THE SCOPE OF THE CODE. MOST DECISIONS OF CONSEQUENCE ARE TAKEN FOLLOWING LEGAL ADVICE. IT SURELY CANNOT HAVE BEEN THE INTENTION OF THE STATES THAT THE FACT THAT LEGAL ADVICE HAD BEEN TAKEN AT SOME STAGE SHOULD BE A DISQUALIFYING FACTOR IN A REQUEST FOR INFORMATION.
22. FINALLY IT MIGHT BE APPROPRIATE TO MAKE MENTION OF THE MATTER OF PUBLIC INTEREST CONSIDERATIONS, AS THIS HAS BEEN RAISED BY THE CHIEF MINISTER AS SOMETHING WHICH IS RELEVANT TO THE BOARDS DECISION ON THE ISSUE OF PROFESSIONAL LEGAL PRIVILEDGE.
23. THERE PLAINLY ARE PUBLIC INTEREST CONSIDERATIONS AT WORK HERE, AND THE RECENT DISCLOSURE ON BEHALF OF THE CHIEF MINISTER, THAT IN TAKING HIS DECISIONS, THE FORMER MINISTER FOR HOME AFFAIRS WAS THE RECIPIENT OF LEGAL ADVICE MAKES IT MORE SO. THIS I SUGGEST IS BECAUSE THE FACT THAT LEGAL ADVICE WAS ASKED FOR AND GIVEN, FURTHER UNDERMINES THE CREDIBILITY OF THE OFFICIAL ACCOUNT OF EVENTS. THE FORMER MINISTER FOR HOME AFFAIRS HAS CLAIMED THAT HE ACTED ON THE BASIS OF INFORMATION WHICH WAS RECEIVED ON 11TH NOVEMBER 2008, INCLUDING A PRESENTATION WHICH TOOK PLACE IN THE EVENING, AND IN CONSEQUENCE IMPOSED THE SUSPENSION THE FOLLOWING MORNING. THIS TIMESCALE LACKED CREDIBILITY FROM THE BEGINNING, AND IF WE ARE NOW BEING TOLD THAT LEGAL ADVICE WAS SOUGHT AND OBTAINED DURING THIS SAME PERIOD, THEN WE ARE ALL ENTITLED TO WONDER WHETHER THIS COULD REALISTICALLY BE POSSIBLE.
24. MR CHAIRMAN, IF MINISTERS, ASSISTED BY CIVIL SERVANTS, HAVE, FOR WHATEVER MOTIVE, PUT TOGETHER A FALSE ACCOUNT OF EVENTS, AND HAVE PRODUCED PAPERWORK AND MADE STATEMENTS TO SUPPORT THAT FALSE ACCOUNT, AND IF OTHERS HAVE SUBSEQUENTLY BECOME AWARE OF WHAT HAS BEEN DONE, AND HAVE USED THEIR POSITION TO COVER UP THE TRUTH AND ATTEMPT TO PREVENT IT FROM BECOMING KNOWN, THEN THERE IS CERTAINLY AN ISSUE OF PUBLIC INTEREST.
25. MR CHAIRMAN, MEMBERS OF THE BOARD, THE CODE ON ACCESS TO INFORMATION IS INTENDED TO ENABLE THE PUBLIC TO GAIN ACCESS TO THE TRUTH ABOUT THE ACTIONS OF GOVERMENT. THE CODE REQUIRES THAT ISSUES ARE APPROACHED WITH A PRESUMPTION OF OPENESS. GROUNDS FOR REFUSAL ARE STRICTLY DEFINED. THE POTENITAL FOR AN APPLICATION TO CAUSE MINISTERIAL EMBARASSMENT IS NOT ONE OF THE GROUNDS ON WHICH INFORMATION CAN BE REFUSED. I ASK THAT THE BOARD ALLOW THE APPLICATION AND THEREBY ALLOW THE CODE TO SERVE THE PURPOSE FOR WHICH IT IS INTENDED.