The Chief of Police who had been suspended, Graham Power QPM, was in charge of a police force that was involved in possibly the largest investigation this island has ever seen, or is ever likely to see. The force were investigating Child Abuse that occurred, in State run institutions FOR DECADES.
The circumstances surrounding the reason(s) and process used to suspend the Police Chief can be described as dubious at best or illegal at worst.
As the former Home Affairs Minister retired from politics there was a lot of hope put into a candidate running for office in 2008 who had declared, if elected, he would stand for the position of Home Affairs Minister. That candidate was the island's Magistrate, Ian Le Marquand, who most believed would be the ideal person to sort out the mess left by his predecessor and go on to re-instate the Former Police Chief.
Ian Le Marquand went on to top the poll in the 2008 elections and was subsequently voted in has Home Affairs Minister. This gave a lot of us much hope that things will now be sorted out. The newly elected, former magistrate, will "do the right thing." Alas, as regular readers will be only too painfully aware, this was not to be.
Senator Le Marquand not only failed to sort out the original suspension of the Police Chief, but he refused to even look at it as these couple of paragraphs from the first "suspension Review Hearing" demonstrate.
Dr. T. Brain:
"If I am allowed in due course to develop the argument it is that the procedures of 12th November were improperly applied, therefore the suspension was inappropriate and improper; I will hesitate to use the word “illegal” in these circumstances. Then there is the one of proportionality as to whether the suspension should be re-imposed. So I would invite you to consider whether the suspension was properly imposed on 12th November……… It is simply this morning that we should look at the issues of 12th November to see whether they were properly applied because, as I say, that does have a material bearing on Mr. Power’s current status. Then we can consider whether suspension is any longer appropriate. I think it will come as no surprise to you that I will be suggesting that that is not any longer appropriate.
Senator Ian Le Marquand:
I am not going to look at the original circumstances. That is my decision on that.
Dr. T. Brain:
May I clarify, Minister, whether therefore you will not be hearing what I have to say about the issues of 12th November?
Senator B.I. Le Marquand:
That is correct, yes." (END)
Below is the full transcript of that hearing and it makes for very uncomfortable reading as to how "The Jersey Way" operates. Of course, regular readers will be aware, that Senator Le Marquand has since been on a "Kangaroo Court Roadshow" (with the help of Jersey's State Media) in trying to discredit the Former Police Chief by publishing extracts of the prosecution case against him and not releasing a single word of the defence case. The defence case being a 62,000 word document that the BBC have been in possession of for around four months and have not reported a single word of it either despite being a willing participant in the Kangaroo Court Roadshow with the prosecution case.
Dr. T. Brain is the former Police Chief's representative at this hearing, and the name "Walker" that is in the transcript should read "Warcup."
Below is the full transcript of that hearing and it makes for very uncomfortable reading as to how "The Jersey Way" operates. Of course, regular readers will be aware, that Senator Le Marquand has since been on a "Kangaroo Court Roadshow" (with the help of Jersey's State Media) in trying to discredit the Former Police Chief by publishing extracts of the prosecution case against him and not releasing a single word of the defence case. The defence case being a 62,000 word document that the BBC have been in possession of for around four months and have not reported a single word of it either despite being a willing participant in the Kangaroo Court Roadshow with the prosecution case.
Dr. T. Brain is the former Police Chief's representative at this hearing, and the name "Walker" that is in the transcript should read "Warcup."
STATES OF JERSEY
SUSPENSION REVIEW MEETING
FRIDAY, 13th FEBRUARY 2009
Present:
Senator B.I. Le Marquand (The Minister for Home Affairs)
Mr. G. Power (Chief Officer, States of Jersey Police):
Dr. T. Brain (Chief Constable, Gloucestershire):
Mr. M. Pinel (Head Of Employee Relations, States of Jersey):
Senator B.I. Le Marquand (The Minister for Home Affairs):
Good morning. I am Ian Le Marquand, the Home Affairs Minister, and this is a review of the suspension of the Police Chief, Mr. Graham Power. Today is 13th February at just after 11.45 a.m. It would be helpful for the tape if I asked all the other people who are here just to speak and identify themselves so if there was a transcript produced at any stage it helps the transcriber.
Mr. G. Power (Chief Officer, States of Jersey Police):Graham Power, Chief Officer, States of Jersey Police.
Dr. T. Brain (Chief Constable, Gloucestershire):
Dr. Timothy Brain, Chief Constable of Gloucestershire and the representative of the Chief Police Officers staff association.
Mr. M. Pinel (Head Of Employee Relations, States of Jersey):
Mick Pinel, Head of Employee Relations, States of Jersey.
Senator B.I. Le Marquand:
Thank you very much. We will check in a moment when the lady comes back in that the sound system is working properly. That is fine. Good. Today the situation is that you are representing Mr. Power, Dr. Brain, and Mr. Pinel is really here to assist me but nobody is presenting what I might call “the prosecution side” because that is not thought to be appropriate at this stage. If matters proceed to a full disciplinary hearing then it is anticipated that that will be presented probably, I think, by Mr. Pinel rather than by a lawyer. I think that is right, is it not?
Mr. M. Pinel:
What will happen, Minister, is that I would sit with you representing the Director of H.R. (Human Resources) who is Ian Crich and who will have left his post by then. I do not know who will present the case but I think the idea is that Jane Pollard in the Human Resources Department would be the H.R. officer who would present the case.
Senator B.I. Le Marquand:
Sorry, I got the wrong personnel there but just to let you know what is suggested in relation to that. I have read the very helpful letter from Mr. Power, which was dated 12th February. Thank you for that. I also, of course, have made reference to the judicial review of documentation which conveniently puts together a lot of different matters. What I have done in preparation for today is I have sought to analyse that letter and points which are raised in the judicial review stuff. I have tried to analyse the letter from Dr. Brain and I have also analysed my own letter to try and work out what was the best way of proceeding and what were the different issues. I want to give you the opportunity to address me on the different issues. There are quite a number of different issues but I think we probably need to start somewhere in the area of the interplay of the disciplinary code, the law, the change of roles from committee to minister and so on. The point is that whereas in my letter I presupposed we would start in relation to construction of the disciplinary code and the law in terms of my receiving submissions as to what was the right procedure to follow in relation to what we are doing today, I am aware that Mr. Power has some misgivings in relation to the change from committee to minister, which he sets out in some depth. I do not want to make any submissions on that. In a sense, we are looking at the issues as to what procedure I should be following.
Dr. T. Brain:Thank you very much, Minister. Before we go any further I would like to just take this opportunity of thanking you for initiating this review of suspension. Clearly it has been 3 months since the suspension, which is a very long time indeed, and to have the opportunity of review I think is important, both in respect of the status of the States of Jersey Police but also in respect of Mr. Power, our member. So I really am very, very grateful for you setting aside time today.
Senator B.I. Le Marquand:
I am sorry that I have not been able to do it before. As I think you have understand, there have been substantial delays on my getting advice.
Dr. T. Brain:
I am not in any way seeking to infer any criticism on you but I simply wished to say thank you very much for the review today. You do have reference to Mr. Power’s affidavit for judicial review and he does indeed raise a number of issues around the propriety of the procedures and the general status of the Chief Officer Discipline Code and its relationship to other legislation. If I can be of assistance this morning I think it is to invite you to consider the circumstances of the suspension first. I think if you do wish to consider other matters about the status of the code, its applicability its relevancy, how it is developed, I would invite you to consider that after considering the actual application of the code on 12th November and its continued relevancy since then.
Senator B.I. Le Marquand:I have to say it was not my intention to do that and I am sorry if the letter did not make it clear. My intention today is, and always has been, to conduct a review of the issue as to whether Mr. Power should continue to be suspended and not to conduct a review as to whether or not procedurally he was properly suspended in November.
Dr. T. Brain:
Thank you. I think it is, however, important to consider whether he was properly suspended on 12th November because, of course, if he was not properly suspended on 12th November that would negate his suspension and therefore it would be necessary to consider whether he would need to be suspended again in the event of us finding that all that is at issue is the correctness of the procedure on the 12th. If I am allowed in due course to develop the argument it is that the procedures of 12th November were improperly applied, therefore the suspension was inappropriate and improper; I will hesitate to use the word “illegal” in these circumstances. Then there is the one of proportionality as to whether the suspension should be re-imposed. So Iwould invite you to consider whether the suspension was properly imposed on 12th November. What I am, for the sake of clarity this morning, proposing is that we do not consider at the first instance the mix of issues that you have raised that are quite proper to consider and quite right to be the circumstances of the judicial review. It is simply this morning that we should look at the issues of 12th November to see whether they were properly applied because, as I say, that does have a material bearing on Mr. Power’s current status. Then we can consider whether suspension is any longer appropriate. I think it will come as no surprise to you that I will be suggesting that that is not any longer appropriate.
Senator B.I. Le Marquand:
Thank you for that but I am not going to look at the original circumstances. That is my decision on that.
Dr. T. Brain:May I clarify, Minister, whether therefore you will not be hearing what I have to say about the issues of 12th November?
Senator B.I. Le Marquand:
That is correct, yes.
Dr. T. Brain:
May I consult with Mr. Power?
Senator B.I. Le Marquand:Indeed, yes.
(a short break)
Senator B.I. Le Marquand:I have restarted the tape.
Dr. T. Brain:Thank you, Minister. I must formally state for the record that we are most concerned that before we have been given the opportunity to state our case considerable amounts of that case seems to be something that you will not consider. We have to make it quite clear that there have been material breaches of points 1.1, 2.1.1, 2.1.2 and 2.3.1 of the code. These are not technical breaches, these are material breaches and render null and void the original suspension. I do hope that we can consider these matters today as we are keen to support the administrative process that you have entered into in good faith. We would rather that we are addressing these matters as part of an administrative review before we have to consider these matters in a judicial review. So I would ask you to reconsider your opinion that you have just offered there in order that we may fully state the grounds for the reinstatement of Mr. Power. I would make it quite clear that the material breaches are only part of the submission but they are nevertheless an integral part of the submission.
Senator B.I. Le Marquand:There is no problem with you making submissions in relation to the effect of the various different parts of the disciplinary code; I anticipated and expected that you would do that. But in the context of how I should now be dealing with the matter what I am not prepared to do, and have not at any point indicated I would do - and indeed made it clear, I believe, in proceedings in the States that I would not do - is to seek to conduct a review of the decision of the Home Affairs Minister when originally suspending. To do that, because the Home Affairs Minister is a corporation sole, effectively I would be reviewing my own decision and that I cannot do. Mr. Power has sought redress in relation to that matter, as you know, through judicial review but I am not going to open an investigation into whether or not the procedure was correct initially. What I want to do today is to start looking at what is the correct procedure that ought now to apply in relation to the matter, not as to whether or not it was correctly applied originally. Does that clarify my position?
Dr. T. Brain:I think probably if I can offer the opinion that the best thing for us to do is to state what we consider to be the issues and then you will have to deal with the points I raise as you see fit. I am not, I think it is fair to say, in this administrative process questioning the decision; what I am doing is questioning the application of the procedure that led to the decision. But I think in all fairness to Mr. Power, if you hear what has been said you can then make your own assessment of the submission that we make.
Senator B.I. Le Marquand:Well, tell me what the issues are that you want to raise? There may be others which I think need to be raised as well.
Dr. T. Brain:That is very helpful. Thank you very much indeed. We are not at this hearing questioning the existence of the procedures. That will be something that Mr. Power will raise in his judicial review but it is not something we are considering today. I think if that is of help to you that would get us moving.
Senator B.I. Le Marquand:Yes, thank you.
Dr. T. Brain:
Effectively, the suspension procedure has breached Mr. Power’s natural justice rights and his human rights as suspension was disproportionate to the original allegation such as it was made. No notice of a specific breach of the discipline code has been provided to Mr. Power nor, crucially, was any available at the time of his suspension on 12th November 2008, save the general letter that was handed to him on the day. If such a breach has arisen since, that is of the discipline code, no further notice has been provided to Mr. Power. It is the understanding of Mr. Power and myself that an investigation has now commenced but no notice of any discipline allegation has yet been provided to him. So, in summary, no specific allegation was presented to Mr. Power on 12th November and none has been presented since. Of great relevancy to the decision that you are seeking to make today, Mr. Power is an officer of unquestioned personal integrity. There is no reason that he would have sought to interfere with the conduct of any disciplinary or management investigation and furthermore that was not given as a reason for suspension on 12th November. There is no reason to suppose that he would interfere if he was reinstated now to his office. It was open on 12th November, and it is open now, to give consideration to alternative measures short of suspension in dealing with Mr. Power. There is no indication that any issue of public confidence had arisen at the time of the suspension on 12th November and if issues of public confidence have arisen since they have been in the form of questioning the conduct of that original suspension. It is my view that there have been material breaches of paragraph 1.1, 2.1.1, 2.1.2 and 2.3.1. If I could just draw your attention to those relevant paragraphs.
Senator B.I. Le Marquand:Yes. Do you want to tell me how you believe those should be construed?
Dr. T. Brain:Thank you. If we look at paragraph 1.1 the paragraph reads: “In the normal course of events the Home Affairs Minister will raise and attempt to resolve issues arising which concern the performance, conduct, capability, et cetera, of the Chief Officer on a personal basis. The procedure described in this code will be used only where such efforts to resolve problems arising have failed.” The investigation into the children’s home and the investigation into the historic allegations of child abuse have been running for over 2 years. There has therefore been ample opportunity to raise any concerns with Mr. Power. No concerns have been raised by the Home Affairs Minister. No discussion on a personal basis has taken place before 12th November 2008. Of assistance to your deliberations today I would point out that it is open now for such discussions to take place should, of course, Mr. Power be restored to full duty. It is the absence of that discussion which is a material breach of the disciplinary code.
Senator B.I. Le Marquand:Okay.
Dr. T. Brain:Thank you. If we look at paragraph 2.1.1, this paragraph reads: “If circumstances arise where the Home Affairs Minister considers it justified he will notify in writing the Chief Executive to the Council of Ministers of any complaints relating to discipline, performance or capability against the Chief Officer. A copy of this letter will be given to the Chief Officer. At the discretion of the Chief Executive of the Council of Ministers there may be a meeting between the Home Affairs Minister and the Chief Officer to determine the requirement for the complaints to be pursued. While the calling of a meeting is at the discretion of the Chief Executive, the requirement to notify in writing the Chief Executive of the Council of Ministers of any complaints relating to discipline, performance or capability is mandatory. Similarly, the requirement to provide a copy of that letter to the Chief Officer is mandatory.” A letter only arrived at Mr. Power’s address 2 days after the meeting on 12th November. Consequently neither of these requirements have been fulfilled. These amount to another material breach of the discipline code. I will continue when you are ready, Minister.
Senator B.I. Le Marquand:Yes, okay, thank you.
Dr. T. Brain:Thank you. With respect to paragraph 2.1.2, this paragraph reads: “In the event that the complaints are pursued by the Home Affairs Minister a preliminary investigation will be undertaken by the Chief Executive to the Council of Ministers to establish the relevant facts. Facts will include statements from available witnesses and the Chief Officer. Following the investigation, the Chief Executive of the Council of Ministers will produce a written report which will be given to the Home Affairs Minister and the Chief Officer. The results of the preliminary investigation will be discussed by the Home Affairs Minister, Chief Officer and Chief Executive to the Council of Ministers.” There is no evidence that such a preliminary investigation has taken place.
Senator B.I. Le Marquand:Could I stop you a moment?
Dr. T. Brain:
Certainly.
Senator B.I. Le Marquand:My understanding is that there is currently an investigation taking place by the Wiltshire Police.
Dr. T. Brain:
That is not a preliminary investigation.
Senator B.I. Le Marquand:I see, okay.
Dr. T. Brain:That is an investigation.
Senator B.I. Le Marquand:
That is why I need you to explain your position.
Dr. T. Brain:That is a substantive investigation. I have to say, of course, Mr. Power has not been served a disciplinary notice and has not been counselled in respect of his rights. So that investigation is, I submit, a subsequent stage to the preliminary investigation that should have taken place before any engagement with the Chief Constable of Wiltshire.
Senator B.I. Le Marquand:
So your submission is that what is referred to here is a preliminary investigation and Wiltshire is a substantive investigation?
Dr. T. Brain:It is.
Senator B.I. Le Marquand:Okay. I will just note that down.
Dr. T. Brain:
Thank you. If I may just reprise for a moment. So there is no evidence that such a preliminary investigation has taken place. If it has taken place, a written report has not been presented to and shared with the Chief Officer. Again, that amounts to amaterial breach of the discipline code.
Senator B.I. Le Marquand:
I am not aware of any investigation other than the Wiltshire one that would fall within this category, if that helps you.
Dr. T. Brain:Thank you. I think if we just may explore this for a moment. The strong impression I gain from the discipline code is that this preliminary discussion, the preliminary investigation, is intended to allow for matters to be cleared up, particularly where they relate to the management of the force. It could also be used where very minor complaints are made or very minor breaches of discipline are alleged in order to prevent the institution of a full investigation. So that is a necessary preliminary step. It does allow Mr. Power to then engage in a discussion about what is actually alleged and for him to present his point of view. Of course, if after that preliminary investigation and that discussion it is determined to proceed with the full investigation that would be right and proper if it amounted to that degree of seriousness which would necessitate that investigation but this has not happened in this case. There was not a preliminary investigation, there has not been a preliminary notice, there has not been an informal engagement, all of which could have happened and all of which may have prevented the suspension of Mr. Power. If I could go on, Minister?
Senator B.I. Le Marquand:
Yes. I have got one question, I will just flag it up, not necessarily for you to answer it at this point. Following your logic, if this is a preliminary investigation then there must be logically somewhere in here a provision for a substantive investigation. Do you see my point? If there is only one investigation referred to anywhere then your argument would be weakened, I think.
Dr. T. Brain:Well, the code itself at 2.1.2 uses the words “preliminary investigation”. That is not my words; it is the code’s words. That implies that there is at least 2 stages to an investigation, if not 2 investigations. I think we could have an interesting discussion about whether that amounts to 2 separate investigations or whether it is part of a continuum but the term “preliminary investigation” is used and it does say that that preliminary investigation is conducted by the Chief Executive to the Council of Ministers. So we have a very specific event here. It would seem that in no way that the current state of inquiries conducted by Mr. Moore could be construed preliminary. I have to say we are at some considerable disadvantage because we do not know what Mr. Moore is doing but the little that we have been able to assess would suggest that his investigation is already gathering strength and momentum and has well passed any preliminary stage.
Senator B.I. Le Marquand:Okay, thank you.
Dr. T. Brain:Thank you very much. The exploratory search of the former care home at Haut de la Garenne commenced on 19th February 2008 and that was at an advanced stage of the original historic abuse inquiry. There has therefore been ample opportunity to discuss any strategic management issues relating to the force since that date and therefore to properly engage the procedures set out in paragraphs 1.1, 2.1.1 and 2.1.2. Paragraph 2.3.1 states that: “If the preliminary investigation indicates that a more serious breach of discipline/performance/capability has occurred or if the Chief Officer fails to improve and/or maintain improvements in conduct or job performance following the issue of oral warnings the issue will be considered by the Home Affairs Minister.” It has already been established that no preliminary investigation has taken place. No discussion has taken place about any alleged breach of discipline/performance/capability. No opportunity has therefore been given to rectify any failings, real or perceived, or to respond to any warnings as no warnings have been issued. If I may go on, Minister?
Senator B.I. Le Marquand:Just bear with a moment. I am just reading through the paragraph.
Dr. T. Brain:Yes, certainly.
Senator B.I. Le Marquand:
Yes, okay. Thank you.
Dr. T. Brain:Thank you. If I can go on to paragraph 2.3.2, this states that: “The Chief Officer will be provided with in writing (i) sufficient notice of the hearing, (ii) full particulars of the complaint, (iii) a statement of rights under these procedures, and (iv) details for the procedure for the hearing.” Only (iii) has conceivably been complied with. Consequently there has been an additional breach under paragraph 2.3.2 of the procedures.
Senator B.I. Le Marquand:There is an issue, is there not, as to what type of hearing is envisaged by 2.3.2. Do you want to comment on that?
Dr. T. Brain:I think, Minister, the fact that we are even having this conversation about interpreting something that should be a straight forward managerial process gives me cause for concern about the propriety of the discipline code. It seems to me that what is intended is that if you have a strategic management problem or if there is a capability issue about the Chief Officer you engage in an informal discussion. I have to say that seems entirely reasonable. It seems a very, very sensible procedure to put in. If that does not resolve issues you go on to the next stage which is the preliminary investigation and the opportunity for the Chief Officer to respond to the outcome of that preliminary investigation. That seems entirely reasonable too. Now, what we have had is a conflation at best of all of those procedures, colliding on 12th November. We have not got to the stage of a full investigation; we are considerably short of that. We have certainly not got to the stage where Mr. Power has been given an opportunity to put his case and we have not got to the stage where there is a full disciplinary hearing that will consider whether he stays in post or not. We are at the very beginning of this process and it seems that the discipline code quite properly and helpfully allows for there to be an informal engagement and a general ratcheting up of the issue before you get to the full blown investigation and before it is necessary to consider the issue of suspension. Had that process been gone through we may not be sitting here today but it was not and so consequently we have to look at that suspension. So my view is that the hearing we are talking about is one in which Mr. Power is given notice of the outcome of any preliminary investigation and is given the opportunity to comment on that and engage in a conversation, as the discipline code sets out, with the Minister and with the Chief Executive. All of those points, I have to say, seem entirely reasonable should they be complied with.
Senator B.I. Le Marquand:Okay.
Dr. T. Brain:Thank you. It is appreciated that under paragraph 2.3.3 the Chief Officer may be suspended from duty on full pay by the Home Affairs Minister, pending the outcome of procedures in relation to: “More serious circumstances.” These more serious circumstances are not defined. It is not contested, and in my view there is no doubt, that the historic child abuse inquiry and the investigation at the Haut de la Garenne home amounts to a serious case but that is not the test of suspension under the code of conduct. To require immediate action in terms of suspension it would have to relate to an issue of personal misconduct, of which there has never been any suggestion, or a serious lapse of public confidence, of which there is no evidence, or a systemic
mismanagement of the force which had become critical in some way. There certainly is no evidence of the latter. On the contrary, the latest Her Majesty’s Inspector of Constabulary’s report for the Island praises the force for its management.
Senator B.I. Le Marquand:Sorry, you said a bit about systemic. I started making notes and then lost it. A systemic lack of something, you said.
Dr. T. Brain:I will repeat what I said: “Or a systemic mismanagement of the force which had in some way become critical.”
Senator B.I. Le Marquand:Can I just interject a few things?
Dr. T. Brain:Yes, of course.
Senator B.I. Le Marquand:You will appreciate that one of the complications of the procedure which we are conducting today is that I have received legal advice in relation to various different aspects and advice on the issue of the construction of the documents. It is only right and proper that I put matters to you to give you an opportunity to comment on possible alternative ways of construing the matter, because otherwise you are in the dark and it would not be right at all that I hear your submissions, go away and suddenly pull a rabbit out of the hat or something which you have not had an opportunity to comment on. You did, in correspondence, ask that we have a mutual disclosure of positions. That would have been appropriate, I think, if there had been somebody representing the “prosecution” side today. As it is, of course, one of the difficulties I have is the advice I receive is confidential and there are ongoing issues as to whether confidentiality is solely in the recipient or also in the Law Officers’ Department, the Law Officers’ Department’s view being that the confidentiality is both ways. So that is a further complication which arises in this particular case. Can I perhaps put a series of questions to you, and you may need time to consider these, for comment on? Firstly, in terms of construction of the agreement, I think it is fair to say there is no secret about the fact that my view is this is a very poorly produced document. I suspect that may be Mr. Power’s view as well, but nevertheless it is what we have. If one looks at the words “in more serious circumstances” they appear at 2.3.1: “If preliminary investigation into cases where more serious breach of discipline/poor performance” and they appear in a different form in 2.3.3: “In more serious circumstances.” What is Mr. Power’s submission in relation to those words? Do the more serious circumstances in 2.3.3 have to be more serious than the serious circumstances in 2.3.1 or are they coterminous or does it say something entirely different?
Dr. T. Brain:
I think it would be helpful if we considered these one at a time, if you are in agreement with that. Can we go to the code itself and can I ask you to go through those paragraphs again, please?
Senator B.I. Le Marquand:
Yes, I have them in front of me.
Dr. T. BrainI have the full code open in front of me. Could I just ask you to repeat the context of the 2 serious circumstances again?
Senator B.I. Le Marquand:
Yes, 2.3 says: “Continued or serious breach of discipline/poor performance/capability.” 2.3.1 says: “If the preliminary investigation into cases where more serious breach of discipline/poor performance/capability has occurred, or if the Chief Officer fails to improve and/or maintain improvements in conduct or job performance following the issue of oral warning(s), the issue will be considered by the Home Affairs Minister. The hearing will be conducted by the Home Affairs
Minister and the Minister will be advised by the Director of Human Resources.” So that is the first context. Then 2.3.3: “In more serious circumstances the Chief Officer may be suspended from duty on full pay by the Home Affairs Minister pending the outcome of this procedure. In this event the matter will be referred to the States of Jersey in accordance with Article 9 of the Police Force (Jersey) Law 1974.” My question is are you saying that the “more serious circumstances” of 2.3.3 have to be more serious than 2.3.1 or that they mean the same thing?
Dr. T. Brain:
It is impossible for me to determine what the original drafters of this code meant in those circumstances. I am grateful for you drawing these intricacies to our attention, but I think for the benefit of today we just have to go through them one at a time. We have to have a preliminary investigation. If I can just draw your attention to that fact alone. The preliminary investigation must indicate that a more serious breach of discipline/poor performance/capability has occurred. We have already established that no preliminary investigation has taken place or if it has it was not disclosed to Mr. Power. I think, Minister, you indicated a moment ago that if it was not quite your understanding it was at least possibly your understanding that it was Mr. Moore’s investigation that amounted to the preliminary investigation. Consequently, we have
not got to the first base at 2.3.1. There has not been a preliminary investigation to establish whether a more serious breach of the discipline code has occurred. In order for the Minister to make that decision on or near to 12th November he would have to have been in possession of a preliminary investigation. If a preliminary investigation has occurred, Minister, I must ask you to disclose it, either to us now or at least in advance of the judicial review hearing. In all reasonableness, I have heard nothing from you today that would suggest such a preliminary investigation has occurred. So we have not got to there even being a glimmer of suggestion that a more serious breach of discipline/poor performance/capability has occurred. So I hope you do not mind me taking that at some length because I think that is important for our understanding of what we might consider to be a more serious breach or in more serious circumstances.
Senator B.I. Le Marquand:
Can I just check what you have received now because my understanding is that Mr. Power has now received a copy of the letter/report of the Deputy Police Chief, Mr. Walker? Is that right?
Dr. T. Brain:I can be very helpful in terms of what I have received. What I have received amounts to practically nothing and I certainly have not been copied into anything relating to the investigation by Mr. Moore or anything relating to the Deputy.
Senator B.I. Le Marquand:No, but I had thought that you had been provided with ... because the time scale has been quite short and it is possible that it is stuck in the post which does not help anybody.
Mr. M. Pinel:
This is Mr. Walker’s letter of 11th November, Minister.
Senator B.I. Le Marquand:
You were about to get it, as I understand it. I am sorry that you have not got that already.
Mr. M. Pinel:What the legal advice is, Minister, is that there is no reason why that should not be given to Mr. Power and Mr. Brain, but that there would be some sort of confidentiality agreement between us because of the bigger issues.
Senator B.I. Le Marquand:
That has been agreed in principle. Just check what you have.
Dr. T. Brain:
I am glad that you sought to do this because clearly if you were under the apprehension that we were in possession of more information than you thought we were ...
Senator B.I. Le Marquand:I thought it was on its way.
Dr. T. Brain:It may be, but obviously it has not arrived on any of our desks prior to our hearing today.
Senator B.I. Le Marquand:
Can I just take it back to the 2.3.3? I understand the point you are making. What I need to put to you to have an opportunity to comment on is that of course there is a line of argument in relation to construction of this, that 2.3.3 is dealing with something more serious than 2.3.1. In other words the “more serious” is more serious than that which is above in the section, in other words something very serious which would justify an immediate suspension without the holding of a hearing.
Dr. T. Brain:It is difficult for us to contest that as we have not been given anything up until now to suggest that there are more serious circumstances. As I said a moment ago, nobody doubts the seriousness of the investigations which were taking place, but what are the more serious circumstances in which the Chief Officer may be suspended from duty? These are not defined so we are in the difficulty of not being able to contest it because we are not in a position to understand what we are supposed to contest. Of course, had there been some preliminary investigation and had there been the opportunity for informal dialogue which the code specifically allows neither of us would be in doubt about the application of paragraph 2.3.3.
Senator B.I. Le Marquand:
I understand what you are saying, but I am trying to press you on the principle because I think this may be at the core of part of the decision that I will need to make today. The issue as to factual basis, I suppose evidential basis if I can use that in a very wide sense, in a sense I had envisaged would be a secondary stage of today where I am trying to establish what principles, what the correct procedure is and then issues of which documents or other matters I should review come in later. So you will start to make submission on that latter area and say: “We have had nothing”, which I accept. Depending on where we go today, I had envisaged that would be an issue that might then come into play, but I have to make decisions first on the first set of submissions.
Dr. T. Brain:I understand. I will seek to be helpful, but I wish it to be noted that I believe (and I use the term hesitantly here because I do not think it is quite the right term but you did allude to it earlier on) the “prosecution” ... if we just use it for convenience today, I think we all know what we mean. We are not implying anything. It is just otherwise we would bounce around that term all day. To describe to us what are the more serious circumstances, but to give some inkling and I have to say we must reserve our defence because there could be, first of all, an interview at which Mr. Power has rights; secondly, a hearing in which Mr. Power has rights and we are entitled to know
the case that has been put against us and that has not happened. We do have a letter dated 12th November. What we contest is the timing of that letter, of course, because it was not available to Mr. Power before his interview on 12th November. Some bullet points are set out there in respect of Operation Rectangle. Operation Rectangle, in my understanding, is the historic abuse investigation and not the Haut de la Garenne investigation as a specific part. That is quite important because Operation Rectangle is, of course, very old. It is a much longer inquiry than the investigations at Haut de la Garenne so if there were concerns about Operation Rectangle there had been plenty of time to raise them. There are some bullet points set out in that letter of 12th November which raise concerns. It is my view that none of them amount to “more serious circumstances” because at the end of the day the Haut de la Garenne and the Operation Rectangle investigations were part of the strategic management of the Jersey force and not the totality of the Jersey force. There are many issues that are raised in that set of bullet points, but it is highly questionable whether they were either individually or in total relevant to the suspension of Mr. Power. They are all capable, I believe, of (a) either an explanation at the time and being cleared up, or (b) if they are thought to be of sufficient seriousness to merit some kind of remedial action being dealt with as a result of the conversation that is envisaged in the disciplinary code. I cannot guess why certain stances were deemed to be more serious on 12th November than they were perhaps on 11th November or more to the point perhaps on 19th
February 2008 or indeed earlier in 2007. What I can say is that the bullet points outlined in the letter of 12th November do not amount to more serious circumstances, but I can only guess whether those are the bullet points that the Chief Executive and the Minister had in mind on 12th November. I am not wishing to be obtuse on this issue but it is very difficult for us to offer a contention about something we do not fully understand.
Senator B.I. Le Marquand:
I understand, but I want to take it back a stage because I accept you want to make submissions as to whether the factual or evidence basis which existed and which exists would fall within the category of “more serious circumstances”. I want to make a decision in principle on the construction of this first and then go on to look at that later because that then brings into play what documents or other materials I should be looking at in order to do that. In a sense, I need to press you on this and perhaps I need to also introduce another aspect because one of the complications of construing the disciplinary document is that it exists within the context of the statutory framework. I take it somewhere you have copies of the Police Force (Jersey) Law 1974 and particularly Article 8?
Dr. T. Brain:Would you like to read that?
Senator B.I. Le Marquand:
Sorry, I did not bring copies. I assumed you had that.
Dr. T. Brain:I have it, but I did not appreciate that you would be bringing it in today. We are quite happy if you would like to read it, Minister. I will listen to it and form a view.
Senator B.I. Le Marquand:
We will organise some photocopies. It is Article 9. Article 8 deals with the duties and powers of the Minister. I will read sections of Article 9: “The Chief Officer and the Deputy Chief Officer. (i)The Chief Officer should be appointed by the States under such terms as the salary and conditions of service as the States Employment Board may from time to time determine.” I will come back to that in a moment so that you understand the point: “(ii) The Chief Officer may be suspended from office by the Minister which shall refer the matter to the States at their next sitting and may be dismissed from office by the States.” I would just comment that it says “which” rather than “who” because initially this law also made reference to the committee, not to the Minister which is why the language seems a bit odd. A question arises particularly in relation to Article 9(i) and (ii) as to the interplay of the statute and a disciplinary code. You may wish to say, I do not know, that the disciplinary code has been incorporated in by virtue of the words: “On such terms as the salary and conditions of service as the States Employment Board may from time to time determine.” You may wish to say that the disciplinary code was part of the conditions of service and, therefore, binding on the Minister. Do you see what I am saying?
Dr. T. Brain:
I think that is an entirely reasonable construction. One has to say that if that is not the case I am not at all certain what status the disciplinary code has at all. Either it is something which Ministers and the individuals involved would follow or it is not. There is another point I think to make which is there may, and I am not accepting that there is, be unfettered discretion for the Minister, but there certainly is not for other participants in the procedure, including the Chief Officer and the Chief Executive. So while there may be some unfettered discretion, or unfettered discretion for the Minister, it is not for the other parties to the agreement. If it is not part of the
conditions in terms of employment I am not at all certain what status we have here and I cannot say there is any basis for the suspension at all. It would seem to have been dealt with under some kind of prerogative. I think it is fair to say that in the situation in which we find ourselves in the first decade of the 21st century, the idea in a democracy of any Minister being able to operate unfettered discretion seems at odds with all the principles of human rights. There are procedures; these need to be followed. They are there for the defence of everybody. If we were talking about employment law in the U.K. (United Kingdom), and I am not seeking to draw any
parallels, simply that this relates to my experience, that is the whole point of that employment law - it does give protection. If we are talking about chief officers of police then I would submit that discretion has to be very carefully used and it emphasises all the more the importance of following due process because clearly in democracies chief police officers must be allowed to operate with full operational discretion. They are answerable, of course, to the courts, but they are not answerable to political processes. It is vitally important that the discipline code is used in the circumstances where a suspension or investigation of a chief officer is under consideration because the alternative is the potential for misuse, or more seriously the perceived potential for misuse which can amount to the same outcome. Again, I cannot second guess the relationship that government and the legislative intended between the articles that you have read and this discipline code, but it is entirely reasonable to proceed on the assumption that that is its meaning. If it is not, I think that is a very serious matter because it does mean that a chief officer, setting aside Mr. Power and what has happened on 12th November, of police could be suspended without due process. That is a grave weakness. I am sure that is why the law is construed as it is and the disciplinary code exists. You said at the beginning, I think most helpfully, that this is a poorly written document. That is as may be, but we are where we are and we deal with it. One then has to say if it not part of the terms and conditions under Article 9(i) then it is difficult to conceive what status it has.
Senator B.I. Le Marquand:
Can I try and summarise what you have said, because you have said a lot of different things? I am not criticising you for that because it is complex. I think what your submission is, if I have correctly understood it, is that the discretion under 9(ii) to dismiss should be seen as being fettered by the procedure of the disciplinary code as incorporated under 9(i). Have I understood that correctly or is it more subtle than that?
Dr. T. Brain:I think it is capable of being construed in that way. I did not use the word “fettered”. I said I do not think ministers of democracies can have unfettered discretion which is maybe putting it in the negative, but I think is a subtle variation on it. I am not here to pass comment on the operation of the States of Jersey Government. What I am here to say is that everybody has rights. If what we are saying is that a chief officer of police, and in the case of Mr. Power, can simply be suspended and possibly sacked without due process that is very unsatisfactory.
Mr. M. Pinel:
Could I just interject, Minister, with my H.R. hat on? Having been the officer who was involved in Mr. Power’s original appointment back in 2000, I can confirm that the disciplinary code was issued to Mr. Power as part of his contract of employment and I would say that it is contractually binding on the States.
Dr. T. Brain:
I think that is most helpful.
Senator B.I. Le Marquand:
So then effectively under 9(i). That is helpful, thank you. Nevertheless, at the end of the day I think we would agree that I am going to have to decide what the 2.3.3 paragraph means in the context of the statutory provisions, is that not right?
Dr. T. Brain:I think you do have to decide that. I am trying to find a way of being more helpful to enable you to make that decision. I think it is difficult for us and I am not seeking to be obtuse on the issue to envisage what “more serious circumstances” are without further guidance on the issue from the code itself. It is very open-ended, but I think the word we have to concentrate on here is “serious” and that goes back to the issues that are raised in the letter of 12th November, but they do have to be raised in context. While these issues could be serious, we have to then say is it possible still for Mr. Power to have been given the opportunity to consider addressing them because while there are matters that have been raised here they are capable of explanation? Certainly they are capable of being placed in context. I do not wish to put all of the matters of what would properly be the investigation of potentially a hearing, but we do have to consider where some of the things that are fully applicable in a U.K. context relate to the circumstances of Jersey and the investigations which are under consideration. All of these matters here are capable of an explanation had the opportunity been given to provide that explanation and maybe any misunderstandings could have been cleared up at that point. Of course, what we had was a presentation which raised these issues of Mr. Power so in effect what we had was an accusation and a trial without a hearing and that amounts to lack of due process, lack of compliance with the code and I think, more crucially a failure to comply with human rights. Accusations were made; they were not made to Mr. Power and he was given no effective opportunity of answering them. These were management issues. These are not issues of personal misconduct. These are management issues and they are capable of a management explanation which could have been given and for which there was no opportunity to give. Can I just pause for a moment, because I have been talking for a long time? Issues have been raised and we are very happy that you raise these and we explore them in depth, but could I just take the opportunity to pause and just consult with Mr. Power for one moment?
Senator B.I. Le Marquand:
Please do because my next question (I am trying to operate within the structure of my letter of 30th January) and it is right that you speak to Mr. Power about it at this point, is whether that concluded your submissions in relation to what I have categorised here of the relationship of the disciplinary code and the Police Force Law to my review and its procedure.
Dr. T. Brain:I am conscious that Graham has not interjected so I must be going along the right lines, but I think that is a very relevant point to take time and clarify that issue. Thank you very much.
Senator B.I. Le Marquand:
Okay, thank you.
ADJOURNMENT
Senator B.I. Le Marquand:
We had a short break so that you could consider whether there were further matters you wanted to submit in relation to the first sentence of the fourth paragraph of my letter of 30th January and also to check that Mr. Power was happy with the submissions you had made.
Dr. T. Brain:
Thank you for that summary. Yes, there are 2 points that we would like to make. The first is that the document, the code, raised the doctrine of legitimate expectation, in other words what would a reasonable person expect from this document. The legitimate expectation that has been raised is that there would be some form of preliminary investigation and discussion, the reasonable person would so conclude. The second point made is that in Jersey, and I bow to everyone else in the room here, you follow Jersey law and procedures, but where local laws and procedures are unclear or absent then you quite usefully look for guidance in comparable jurisdictions. Here I can help. In England and Wales the chief executive to a police authority does indeed have the role of conducting a preliminary investigation in the event of a complaint being made and indeed to either not proceed with it at that point because it does not meet the technical requirements of a complaint or to seek dispensation from the Independent Police Complaints Commission to absolve the authority from an investigation. Should the Home Secretary be seeking to exercise his powers under section 42 of the Police Act 1996 to retire a Chief Constable in the interests of effectiveness and efficiency the Home Secretary (even the Home Secretary) must comply with the protocol both in respect of the suspension, which is very detailed, and with respect to the hearing that would follow. The process allows for the opportunity to put things right first. So if we look at the rights of legitimate expectation these were properly raised and could have been expected and indeed, as Mr. Pinel has helpfully explained, were part of the terms and conditions of appointment. In terms of using a precedent from elsewhere then the clerk, the chief executive, in a police authority in England and Wales has the ability to conduct preliminary investigation and section 42 does indeed fetter the discretion of the Home Secretary before an officer can be suspended.
Senator B.I. Le Marquand:
This is referred to somewhere in the bundle to do with the application for leave for future appeal I think. I have certainly read something somewhere which contains the section of the statute. There is a section 27, is there not?
Mr. M. Pinel:
The page numbers are 37 to 50.
Senator B.I. Le Marquand:
I have paragraph 17 to 33 in which it seems to be suspension.
Mr. M. Pinel:Yes.
FRIDAY, 13th FEBRUARY 2009
Present:
Senator B.I. Le Marquand (The Minister for Home Affairs)
Mr. G. Power (Chief Officer, States of Jersey Police):
Dr. T. Brain (Chief Constable, Gloucestershire):
Mr. M. Pinel (Head Of Employee Relations, States of Jersey):
Senator B.I. Le Marquand (The Minister for Home Affairs):
Good morning. I am Ian Le Marquand, the Home Affairs Minister, and this is a review of the suspension of the Police Chief, Mr. Graham Power. Today is 13th February at just after 11.45 a.m. It would be helpful for the tape if I asked all the other people who are here just to speak and identify themselves so if there was a transcript produced at any stage it helps the transcriber.
Mr. G. Power (Chief Officer, States of Jersey Police):Graham Power, Chief Officer, States of Jersey Police.
Dr. T. Brain (Chief Constable, Gloucestershire):
Dr. Timothy Brain, Chief Constable of Gloucestershire and the representative of the Chief Police Officers staff association.
Mr. M. Pinel (Head Of Employee Relations, States of Jersey):
Mick Pinel, Head of Employee Relations, States of Jersey.
Senator B.I. Le Marquand:
Thank you very much. We will check in a moment when the lady comes back in that the sound system is working properly. That is fine. Good. Today the situation is that you are representing Mr. Power, Dr. Brain, and Mr. Pinel is really here to assist me but nobody is presenting what I might call “the prosecution side” because that is not thought to be appropriate at this stage. If matters proceed to a full disciplinary hearing then it is anticipated that that will be presented probably, I think, by Mr. Pinel rather than by a lawyer. I think that is right, is it not?
Mr. M. Pinel:
What will happen, Minister, is that I would sit with you representing the Director of H.R. (Human Resources) who is Ian Crich and who will have left his post by then. I do not know who will present the case but I think the idea is that Jane Pollard in the Human Resources Department would be the H.R. officer who would present the case.
Senator B.I. Le Marquand:
Sorry, I got the wrong personnel there but just to let you know what is suggested in relation to that. I have read the very helpful letter from Mr. Power, which was dated 12th February. Thank you for that. I also, of course, have made reference to the judicial review of documentation which conveniently puts together a lot of different matters. What I have done in preparation for today is I have sought to analyse that letter and points which are raised in the judicial review stuff. I have tried to analyse the letter from Dr. Brain and I have also analysed my own letter to try and work out what was the best way of proceeding and what were the different issues. I want to give you the opportunity to address me on the different issues. There are quite a number of different issues but I think we probably need to start somewhere in the area of the interplay of the disciplinary code, the law, the change of roles from committee to minister and so on. The point is that whereas in my letter I presupposed we would start in relation to construction of the disciplinary code and the law in terms of my receiving submissions as to what was the right procedure to follow in relation to what we are doing today, I am aware that Mr. Power has some misgivings in relation to the change from committee to minister, which he sets out in some depth. I do not want to make any submissions on that. In a sense, we are looking at the issues as to what procedure I should be following.
Dr. T. Brain:Thank you very much, Minister. Before we go any further I would like to just take this opportunity of thanking you for initiating this review of suspension. Clearly it has been 3 months since the suspension, which is a very long time indeed, and to have the opportunity of review I think is important, both in respect of the status of the States of Jersey Police but also in respect of Mr. Power, our member. So I really am very, very grateful for you setting aside time today.
Senator B.I. Le Marquand:
I am sorry that I have not been able to do it before. As I think you have understand, there have been substantial delays on my getting advice.
Dr. T. Brain:
I am not in any way seeking to infer any criticism on you but I simply wished to say thank you very much for the review today. You do have reference to Mr. Power’s affidavit for judicial review and he does indeed raise a number of issues around the propriety of the procedures and the general status of the Chief Officer Discipline Code and its relationship to other legislation. If I can be of assistance this morning I think it is to invite you to consider the circumstances of the suspension first. I think if you do wish to consider other matters about the status of the code, its applicability its relevancy, how it is developed, I would invite you to consider that after considering the actual application of the code on 12th November and its continued relevancy since then.
Senator B.I. Le Marquand:I have to say it was not my intention to do that and I am sorry if the letter did not make it clear. My intention today is, and always has been, to conduct a review of the issue as to whether Mr. Power should continue to be suspended and not to conduct a review as to whether or not procedurally he was properly suspended in November.
Dr. T. Brain:
Thank you. I think it is, however, important to consider whether he was properly suspended on 12th November because, of course, if he was not properly suspended on 12th November that would negate his suspension and therefore it would be necessary to consider whether he would need to be suspended again in the event of us finding that all that is at issue is the correctness of the procedure on the 12th. If I am allowed in due course to develop the argument it is that the procedures of 12th November were improperly applied, therefore the suspension was inappropriate and improper; I will hesitate to use the word “illegal” in these circumstances. Then there is the one of proportionality as to whether the suspension should be re-imposed. So Iwould invite you to consider whether the suspension was properly imposed on 12th November. What I am, for the sake of clarity this morning, proposing is that we do not consider at the first instance the mix of issues that you have raised that are quite proper to consider and quite right to be the circumstances of the judicial review. It is simply this morning that we should look at the issues of 12th November to see whether they were properly applied because, as I say, that does have a material bearing on Mr. Power’s current status. Then we can consider whether suspension is any longer appropriate. I think it will come as no surprise to you that I will be suggesting that that is not any longer appropriate.
Senator B.I. Le Marquand:
Thank you for that but I am not going to look at the original circumstances. That is my decision on that.
Dr. T. Brain:May I clarify, Minister, whether therefore you will not be hearing what I have to say about the issues of 12th November?
Senator B.I. Le Marquand:
That is correct, yes.
Dr. T. Brain:
May I consult with Mr. Power?
Senator B.I. Le Marquand:Indeed, yes.
(a short break)
Senator B.I. Le Marquand:I have restarted the tape.
Dr. T. Brain:Thank you, Minister. I must formally state for the record that we are most concerned that before we have been given the opportunity to state our case considerable amounts of that case seems to be something that you will not consider. We have to make it quite clear that there have been material breaches of points 1.1, 2.1.1, 2.1.2 and 2.3.1 of the code. These are not technical breaches, these are material breaches and render null and void the original suspension. I do hope that we can consider these matters today as we are keen to support the administrative process that you have entered into in good faith. We would rather that we are addressing these matters as part of an administrative review before we have to consider these matters in a judicial review. So I would ask you to reconsider your opinion that you have just offered there in order that we may fully state the grounds for the reinstatement of Mr. Power. I would make it quite clear that the material breaches are only part of the submission but they are nevertheless an integral part of the submission.
Senator B.I. Le Marquand:There is no problem with you making submissions in relation to the effect of the various different parts of the disciplinary code; I anticipated and expected that you would do that. But in the context of how I should now be dealing with the matter what I am not prepared to do, and have not at any point indicated I would do - and indeed made it clear, I believe, in proceedings in the States that I would not do - is to seek to conduct a review of the decision of the Home Affairs Minister when originally suspending. To do that, because the Home Affairs Minister is a corporation sole, effectively I would be reviewing my own decision and that I cannot do. Mr. Power has sought redress in relation to that matter, as you know, through judicial review but I am not going to open an investigation into whether or not the procedure was correct initially. What I want to do today is to start looking at what is the correct procedure that ought now to apply in relation to the matter, not as to whether or not it was correctly applied originally. Does that clarify my position?
Dr. T. Brain:I think probably if I can offer the opinion that the best thing for us to do is to state what we consider to be the issues and then you will have to deal with the points I raise as you see fit. I am not, I think it is fair to say, in this administrative process questioning the decision; what I am doing is questioning the application of the procedure that led to the decision. But I think in all fairness to Mr. Power, if you hear what has been said you can then make your own assessment of the submission that we make.
Senator B.I. Le Marquand:Well, tell me what the issues are that you want to raise? There may be others which I think need to be raised as well.
Dr. T. Brain:That is very helpful. Thank you very much indeed. We are not at this hearing questioning the existence of the procedures. That will be something that Mr. Power will raise in his judicial review but it is not something we are considering today. I think if that is of help to you that would get us moving.
Senator B.I. Le Marquand:Yes, thank you.
Dr. T. Brain:
Effectively, the suspension procedure has breached Mr. Power’s natural justice rights and his human rights as suspension was disproportionate to the original allegation such as it was made. No notice of a specific breach of the discipline code has been provided to Mr. Power nor, crucially, was any available at the time of his suspension on 12th November 2008, save the general letter that was handed to him on the day. If such a breach has arisen since, that is of the discipline code, no further notice has been provided to Mr. Power. It is the understanding of Mr. Power and myself that an investigation has now commenced but no notice of any discipline allegation has yet been provided to him. So, in summary, no specific allegation was presented to Mr. Power on 12th November and none has been presented since. Of great relevancy to the decision that you are seeking to make today, Mr. Power is an officer of unquestioned personal integrity. There is no reason that he would have sought to interfere with the conduct of any disciplinary or management investigation and furthermore that was not given as a reason for suspension on 12th November. There is no reason to suppose that he would interfere if he was reinstated now to his office. It was open on 12th November, and it is open now, to give consideration to alternative measures short of suspension in dealing with Mr. Power. There is no indication that any issue of public confidence had arisen at the time of the suspension on 12th November and if issues of public confidence have arisen since they have been in the form of questioning the conduct of that original suspension. It is my view that there have been material breaches of paragraph 1.1, 2.1.1, 2.1.2 and 2.3.1. If I could just draw your attention to those relevant paragraphs.
Senator B.I. Le Marquand:Yes. Do you want to tell me how you believe those should be construed?
Dr. T. Brain:Thank you. If we look at paragraph 1.1 the paragraph reads: “In the normal course of events the Home Affairs Minister will raise and attempt to resolve issues arising which concern the performance, conduct, capability, et cetera, of the Chief Officer on a personal basis. The procedure described in this code will be used only where such efforts to resolve problems arising have failed.” The investigation into the children’s home and the investigation into the historic allegations of child abuse have been running for over 2 years. There has therefore been ample opportunity to raise any concerns with Mr. Power. No concerns have been raised by the Home Affairs Minister. No discussion on a personal basis has taken place before 12th November 2008. Of assistance to your deliberations today I would point out that it is open now for such discussions to take place should, of course, Mr. Power be restored to full duty. It is the absence of that discussion which is a material breach of the disciplinary code.
Senator B.I. Le Marquand:Okay.
Dr. T. Brain:Thank you. If we look at paragraph 2.1.1, this paragraph reads: “If circumstances arise where the Home Affairs Minister considers it justified he will notify in writing the Chief Executive to the Council of Ministers of any complaints relating to discipline, performance or capability against the Chief Officer. A copy of this letter will be given to the Chief Officer. At the discretion of the Chief Executive of the Council of Ministers there may be a meeting between the Home Affairs Minister and the Chief Officer to determine the requirement for the complaints to be pursued. While the calling of a meeting is at the discretion of the Chief Executive, the requirement to notify in writing the Chief Executive of the Council of Ministers of any complaints relating to discipline, performance or capability is mandatory. Similarly, the requirement to provide a copy of that letter to the Chief Officer is mandatory.” A letter only arrived at Mr. Power’s address 2 days after the meeting on 12th November. Consequently neither of these requirements have been fulfilled. These amount to another material breach of the discipline code. I will continue when you are ready, Minister.
Senator B.I. Le Marquand:Yes, okay, thank you.
Dr. T. Brain:Thank you. With respect to paragraph 2.1.2, this paragraph reads: “In the event that the complaints are pursued by the Home Affairs Minister a preliminary investigation will be undertaken by the Chief Executive to the Council of Ministers to establish the relevant facts. Facts will include statements from available witnesses and the Chief Officer. Following the investigation, the Chief Executive of the Council of Ministers will produce a written report which will be given to the Home Affairs Minister and the Chief Officer. The results of the preliminary investigation will be discussed by the Home Affairs Minister, Chief Officer and Chief Executive to the Council of Ministers.” There is no evidence that such a preliminary investigation has taken place.
Senator B.I. Le Marquand:Could I stop you a moment?
Dr. T. Brain:
Certainly.
Senator B.I. Le Marquand:My understanding is that there is currently an investigation taking place by the Wiltshire Police.
Dr. T. Brain:
That is not a preliminary investigation.
Senator B.I. Le Marquand:I see, okay.
Dr. T. Brain:That is an investigation.
Senator B.I. Le Marquand:
That is why I need you to explain your position.
Dr. T. Brain:That is a substantive investigation. I have to say, of course, Mr. Power has not been served a disciplinary notice and has not been counselled in respect of his rights. So that investigation is, I submit, a subsequent stage to the preliminary investigation that should have taken place before any engagement with the Chief Constable of Wiltshire.
Senator B.I. Le Marquand:
So your submission is that what is referred to here is a preliminary investigation and Wiltshire is a substantive investigation?
Dr. T. Brain:It is.
Senator B.I. Le Marquand:Okay. I will just note that down.
Dr. T. Brain:
Thank you. If I may just reprise for a moment. So there is no evidence that such a preliminary investigation has taken place. If it has taken place, a written report has not been presented to and shared with the Chief Officer. Again, that amounts to amaterial breach of the discipline code.
Senator B.I. Le Marquand:
I am not aware of any investigation other than the Wiltshire one that would fall within this category, if that helps you.
Dr. T. Brain:Thank you. I think if we just may explore this for a moment. The strong impression I gain from the discipline code is that this preliminary discussion, the preliminary investigation, is intended to allow for matters to be cleared up, particularly where they relate to the management of the force. It could also be used where very minor complaints are made or very minor breaches of discipline are alleged in order to prevent the institution of a full investigation. So that is a necessary preliminary step. It does allow Mr. Power to then engage in a discussion about what is actually alleged and for him to present his point of view. Of course, if after that preliminary investigation and that discussion it is determined to proceed with the full investigation that would be right and proper if it amounted to that degree of seriousness which would necessitate that investigation but this has not happened in this case. There was not a preliminary investigation, there has not been a preliminary notice, there has not been an informal engagement, all of which could have happened and all of which may have prevented the suspension of Mr. Power. If I could go on, Minister?
Senator B.I. Le Marquand:
Yes. I have got one question, I will just flag it up, not necessarily for you to answer it at this point. Following your logic, if this is a preliminary investigation then there must be logically somewhere in here a provision for a substantive investigation. Do you see my point? If there is only one investigation referred to anywhere then your argument would be weakened, I think.
Dr. T. Brain:Well, the code itself at 2.1.2 uses the words “preliminary investigation”. That is not my words; it is the code’s words. That implies that there is at least 2 stages to an investigation, if not 2 investigations. I think we could have an interesting discussion about whether that amounts to 2 separate investigations or whether it is part of a continuum but the term “preliminary investigation” is used and it does say that that preliminary investigation is conducted by the Chief Executive to the Council of Ministers. So we have a very specific event here. It would seem that in no way that the current state of inquiries conducted by Mr. Moore could be construed preliminary. I have to say we are at some considerable disadvantage because we do not know what Mr. Moore is doing but the little that we have been able to assess would suggest that his investigation is already gathering strength and momentum and has well passed any preliminary stage.
Senator B.I. Le Marquand:Okay, thank you.
Dr. T. Brain:Thank you very much. The exploratory search of the former care home at Haut de la Garenne commenced on 19th February 2008 and that was at an advanced stage of the original historic abuse inquiry. There has therefore been ample opportunity to discuss any strategic management issues relating to the force since that date and therefore to properly engage the procedures set out in paragraphs 1.1, 2.1.1 and 2.1.2. Paragraph 2.3.1 states that: “If the preliminary investigation indicates that a more serious breach of discipline/performance/capability has occurred or if the Chief Officer fails to improve and/or maintain improvements in conduct or job performance following the issue of oral warnings the issue will be considered by the Home Affairs Minister.” It has already been established that no preliminary investigation has taken place. No discussion has taken place about any alleged breach of discipline/performance/capability. No opportunity has therefore been given to rectify any failings, real or perceived, or to respond to any warnings as no warnings have been issued. If I may go on, Minister?
Senator B.I. Le Marquand:Just bear with a moment. I am just reading through the paragraph.
Dr. T. Brain:Yes, certainly.
Senator B.I. Le Marquand:
Yes, okay. Thank you.
Dr. T. Brain:Thank you. If I can go on to paragraph 2.3.2, this states that: “The Chief Officer will be provided with in writing (i) sufficient notice of the hearing, (ii) full particulars of the complaint, (iii) a statement of rights under these procedures, and (iv) details for the procedure for the hearing.” Only (iii) has conceivably been complied with. Consequently there has been an additional breach under paragraph 2.3.2 of the procedures.
Senator B.I. Le Marquand:There is an issue, is there not, as to what type of hearing is envisaged by 2.3.2. Do you want to comment on that?
Dr. T. Brain:I think, Minister, the fact that we are even having this conversation about interpreting something that should be a straight forward managerial process gives me cause for concern about the propriety of the discipline code. It seems to me that what is intended is that if you have a strategic management problem or if there is a capability issue about the Chief Officer you engage in an informal discussion. I have to say that seems entirely reasonable. It seems a very, very sensible procedure to put in. If that does not resolve issues you go on to the next stage which is the preliminary investigation and the opportunity for the Chief Officer to respond to the outcome of that preliminary investigation. That seems entirely reasonable too. Now, what we have had is a conflation at best of all of those procedures, colliding on 12th November. We have not got to the stage of a full investigation; we are considerably short of that. We have certainly not got to the stage where Mr. Power has been given an opportunity to put his case and we have not got to the stage where there is a full disciplinary hearing that will consider whether he stays in post or not. We are at the very beginning of this process and it seems that the discipline code quite properly and helpfully allows for there to be an informal engagement and a general ratcheting up of the issue before you get to the full blown investigation and before it is necessary to consider the issue of suspension. Had that process been gone through we may not be sitting here today but it was not and so consequently we have to look at that suspension. So my view is that the hearing we are talking about is one in which Mr. Power is given notice of the outcome of any preliminary investigation and is given the opportunity to comment on that and engage in a conversation, as the discipline code sets out, with the Minister and with the Chief Executive. All of those points, I have to say, seem entirely reasonable should they be complied with.
Senator B.I. Le Marquand:Okay.
Dr. T. Brain:Thank you. It is appreciated that under paragraph 2.3.3 the Chief Officer may be suspended from duty on full pay by the Home Affairs Minister, pending the outcome of procedures in relation to: “More serious circumstances.” These more serious circumstances are not defined. It is not contested, and in my view there is no doubt, that the historic child abuse inquiry and the investigation at the Haut de la Garenne home amounts to a serious case but that is not the test of suspension under the code of conduct. To require immediate action in terms of suspension it would have to relate to an issue of personal misconduct, of which there has never been any suggestion, or a serious lapse of public confidence, of which there is no evidence, or a systemic
mismanagement of the force which had become critical in some way. There certainly is no evidence of the latter. On the contrary, the latest Her Majesty’s Inspector of Constabulary’s report for the Island praises the force for its management.
Senator B.I. Le Marquand:Sorry, you said a bit about systemic. I started making notes and then lost it. A systemic lack of something, you said.
Dr. T. Brain:I will repeat what I said: “Or a systemic mismanagement of the force which had in some way become critical.”
Senator B.I. Le Marquand:Can I just interject a few things?
Dr. T. Brain:Yes, of course.
Senator B.I. Le Marquand:You will appreciate that one of the complications of the procedure which we are conducting today is that I have received legal advice in relation to various different aspects and advice on the issue of the construction of the documents. It is only right and proper that I put matters to you to give you an opportunity to comment on possible alternative ways of construing the matter, because otherwise you are in the dark and it would not be right at all that I hear your submissions, go away and suddenly pull a rabbit out of the hat or something which you have not had an opportunity to comment on. You did, in correspondence, ask that we have a mutual disclosure of positions. That would have been appropriate, I think, if there had been somebody representing the “prosecution” side today. As it is, of course, one of the difficulties I have is the advice I receive is confidential and there are ongoing issues as to whether confidentiality is solely in the recipient or also in the Law Officers’ Department, the Law Officers’ Department’s view being that the confidentiality is both ways. So that is a further complication which arises in this particular case. Can I perhaps put a series of questions to you, and you may need time to consider these, for comment on? Firstly, in terms of construction of the agreement, I think it is fair to say there is no secret about the fact that my view is this is a very poorly produced document. I suspect that may be Mr. Power’s view as well, but nevertheless it is what we have. If one looks at the words “in more serious circumstances” they appear at 2.3.1: “If preliminary investigation into cases where more serious breach of discipline/poor performance” and they appear in a different form in 2.3.3: “In more serious circumstances.” What is Mr. Power’s submission in relation to those words? Do the more serious circumstances in 2.3.3 have to be more serious than the serious circumstances in 2.3.1 or are they coterminous or does it say something entirely different?
Dr. T. Brain:
I think it would be helpful if we considered these one at a time, if you are in agreement with that. Can we go to the code itself and can I ask you to go through those paragraphs again, please?
Senator B.I. Le Marquand:
Yes, I have them in front of me.
Dr. T. BrainI have the full code open in front of me. Could I just ask you to repeat the context of the 2 serious circumstances again?
Senator B.I. Le Marquand:
Yes, 2.3 says: “Continued or serious breach of discipline/poor performance/capability.” 2.3.1 says: “If the preliminary investigation into cases where more serious breach of discipline/poor performance/capability has occurred, or if the Chief Officer fails to improve and/or maintain improvements in conduct or job performance following the issue of oral warning(s), the issue will be considered by the Home Affairs Minister. The hearing will be conducted by the Home Affairs
Minister and the Minister will be advised by the Director of Human Resources.” So that is the first context. Then 2.3.3: “In more serious circumstances the Chief Officer may be suspended from duty on full pay by the Home Affairs Minister pending the outcome of this procedure. In this event the matter will be referred to the States of Jersey in accordance with Article 9 of the Police Force (Jersey) Law 1974.” My question is are you saying that the “more serious circumstances” of 2.3.3 have to be more serious than 2.3.1 or that they mean the same thing?
Dr. T. Brain:
It is impossible for me to determine what the original drafters of this code meant in those circumstances. I am grateful for you drawing these intricacies to our attention, but I think for the benefit of today we just have to go through them one at a time. We have to have a preliminary investigation. If I can just draw your attention to that fact alone. The preliminary investigation must indicate that a more serious breach of discipline/poor performance/capability has occurred. We have already established that no preliminary investigation has taken place or if it has it was not disclosed to Mr. Power. I think, Minister, you indicated a moment ago that if it was not quite your understanding it was at least possibly your understanding that it was Mr. Moore’s investigation that amounted to the preliminary investigation. Consequently, we have
not got to the first base at 2.3.1. There has not been a preliminary investigation to establish whether a more serious breach of the discipline code has occurred. In order for the Minister to make that decision on or near to 12th November he would have to have been in possession of a preliminary investigation. If a preliminary investigation has occurred, Minister, I must ask you to disclose it, either to us now or at least in advance of the judicial review hearing. In all reasonableness, I have heard nothing from you today that would suggest such a preliminary investigation has occurred. So we have not got to there even being a glimmer of suggestion that a more serious breach of discipline/poor performance/capability has occurred. So I hope you do not mind me taking that at some length because I think that is important for our understanding of what we might consider to be a more serious breach or in more serious circumstances.
Senator B.I. Le Marquand:
Can I just check what you have received now because my understanding is that Mr. Power has now received a copy of the letter/report of the Deputy Police Chief, Mr. Walker? Is that right?
Dr. T. Brain:I can be very helpful in terms of what I have received. What I have received amounts to practically nothing and I certainly have not been copied into anything relating to the investigation by Mr. Moore or anything relating to the Deputy.
Senator B.I. Le Marquand:No, but I had thought that you had been provided with ... because the time scale has been quite short and it is possible that it is stuck in the post which does not help anybody.
Mr. M. Pinel:
This is Mr. Walker’s letter of 11th November, Minister.
Senator B.I. Le Marquand:
You were about to get it, as I understand it. I am sorry that you have not got that already.
Mr. M. Pinel:What the legal advice is, Minister, is that there is no reason why that should not be given to Mr. Power and Mr. Brain, but that there would be some sort of confidentiality agreement between us because of the bigger issues.
Senator B.I. Le Marquand:
That has been agreed in principle. Just check what you have.
Dr. T. Brain:
I am glad that you sought to do this because clearly if you were under the apprehension that we were in possession of more information than you thought we were ...
Senator B.I. Le Marquand:I thought it was on its way.
Dr. T. Brain:It may be, but obviously it has not arrived on any of our desks prior to our hearing today.
Senator B.I. Le Marquand:
Can I just take it back to the 2.3.3? I understand the point you are making. What I need to put to you to have an opportunity to comment on is that of course there is a line of argument in relation to construction of this, that 2.3.3 is dealing with something more serious than 2.3.1. In other words the “more serious” is more serious than that which is above in the section, in other words something very serious which would justify an immediate suspension without the holding of a hearing.
Dr. T. Brain:It is difficult for us to contest that as we have not been given anything up until now to suggest that there are more serious circumstances. As I said a moment ago, nobody doubts the seriousness of the investigations which were taking place, but what are the more serious circumstances in which the Chief Officer may be suspended from duty? These are not defined so we are in the difficulty of not being able to contest it because we are not in a position to understand what we are supposed to contest. Of course, had there been some preliminary investigation and had there been the opportunity for informal dialogue which the code specifically allows neither of us would be in doubt about the application of paragraph 2.3.3.
Senator B.I. Le Marquand:
I understand what you are saying, but I am trying to press you on the principle because I think this may be at the core of part of the decision that I will need to make today. The issue as to factual basis, I suppose evidential basis if I can use that in a very wide sense, in a sense I had envisaged would be a secondary stage of today where I am trying to establish what principles, what the correct procedure is and then issues of which documents or other matters I should review come in later. So you will start to make submission on that latter area and say: “We have had nothing”, which I accept. Depending on where we go today, I had envisaged that would be an issue that might then come into play, but I have to make decisions first on the first set of submissions.
Dr. T. Brain:I understand. I will seek to be helpful, but I wish it to be noted that I believe (and I use the term hesitantly here because I do not think it is quite the right term but you did allude to it earlier on) the “prosecution” ... if we just use it for convenience today, I think we all know what we mean. We are not implying anything. It is just otherwise we would bounce around that term all day. To describe to us what are the more serious circumstances, but to give some inkling and I have to say we must reserve our defence because there could be, first of all, an interview at which Mr. Power has rights; secondly, a hearing in which Mr. Power has rights and we are entitled to know
the case that has been put against us and that has not happened. We do have a letter dated 12th November. What we contest is the timing of that letter, of course, because it was not available to Mr. Power before his interview on 12th November. Some bullet points are set out there in respect of Operation Rectangle. Operation Rectangle, in my understanding, is the historic abuse investigation and not the Haut de la Garenne investigation as a specific part. That is quite important because Operation Rectangle is, of course, very old. It is a much longer inquiry than the investigations at Haut de la Garenne so if there were concerns about Operation Rectangle there had been plenty of time to raise them. There are some bullet points set out in that letter of 12th November which raise concerns. It is my view that none of them amount to “more serious circumstances” because at the end of the day the Haut de la Garenne and the Operation Rectangle investigations were part of the strategic management of the Jersey force and not the totality of the Jersey force. There are many issues that are raised in that set of bullet points, but it is highly questionable whether they were either individually or in total relevant to the suspension of Mr. Power. They are all capable, I believe, of (a) either an explanation at the time and being cleared up, or (b) if they are thought to be of sufficient seriousness to merit some kind of remedial action being dealt with as a result of the conversation that is envisaged in the disciplinary code. I cannot guess why certain stances were deemed to be more serious on 12th November than they were perhaps on 11th November or more to the point perhaps on 19th
February 2008 or indeed earlier in 2007. What I can say is that the bullet points outlined in the letter of 12th November do not amount to more serious circumstances, but I can only guess whether those are the bullet points that the Chief Executive and the Minister had in mind on 12th November. I am not wishing to be obtuse on this issue but it is very difficult for us to offer a contention about something we do not fully understand.
Senator B.I. Le Marquand:
I understand, but I want to take it back a stage because I accept you want to make submissions as to whether the factual or evidence basis which existed and which exists would fall within the category of “more serious circumstances”. I want to make a decision in principle on the construction of this first and then go on to look at that later because that then brings into play what documents or other materials I should be looking at in order to do that. In a sense, I need to press you on this and perhaps I need to also introduce another aspect because one of the complications of construing the disciplinary document is that it exists within the context of the statutory framework. I take it somewhere you have copies of the Police Force (Jersey) Law 1974 and particularly Article 8?
Dr. T. Brain:Would you like to read that?
Senator B.I. Le Marquand:
Sorry, I did not bring copies. I assumed you had that.
Dr. T. Brain:I have it, but I did not appreciate that you would be bringing it in today. We are quite happy if you would like to read it, Minister. I will listen to it and form a view.
Senator B.I. Le Marquand:
We will organise some photocopies. It is Article 9. Article 8 deals with the duties and powers of the Minister. I will read sections of Article 9: “The Chief Officer and the Deputy Chief Officer. (i)The Chief Officer should be appointed by the States under such terms as the salary and conditions of service as the States Employment Board may from time to time determine.” I will come back to that in a moment so that you understand the point: “(ii) The Chief Officer may be suspended from office by the Minister which shall refer the matter to the States at their next sitting and may be dismissed from office by the States.” I would just comment that it says “which” rather than “who” because initially this law also made reference to the committee, not to the Minister which is why the language seems a bit odd. A question arises particularly in relation to Article 9(i) and (ii) as to the interplay of the statute and a disciplinary code. You may wish to say, I do not know, that the disciplinary code has been incorporated in by virtue of the words: “On such terms as the salary and conditions of service as the States Employment Board may from time to time determine.” You may wish to say that the disciplinary code was part of the conditions of service and, therefore, binding on the Minister. Do you see what I am saying?
Dr. T. Brain:
I think that is an entirely reasonable construction. One has to say that if that is not the case I am not at all certain what status the disciplinary code has at all. Either it is something which Ministers and the individuals involved would follow or it is not. There is another point I think to make which is there may, and I am not accepting that there is, be unfettered discretion for the Minister, but there certainly is not for other participants in the procedure, including the Chief Officer and the Chief Executive. So while there may be some unfettered discretion, or unfettered discretion for the Minister, it is not for the other parties to the agreement. If it is not part of the
conditions in terms of employment I am not at all certain what status we have here and I cannot say there is any basis for the suspension at all. It would seem to have been dealt with under some kind of prerogative. I think it is fair to say that in the situation in which we find ourselves in the first decade of the 21st century, the idea in a democracy of any Minister being able to operate unfettered discretion seems at odds with all the principles of human rights. There are procedures; these need to be followed. They are there for the defence of everybody. If we were talking about employment law in the U.K. (United Kingdom), and I am not seeking to draw any
parallels, simply that this relates to my experience, that is the whole point of that employment law - it does give protection. If we are talking about chief officers of police then I would submit that discretion has to be very carefully used and it emphasises all the more the importance of following due process because clearly in democracies chief police officers must be allowed to operate with full operational discretion. They are answerable, of course, to the courts, but they are not answerable to political processes. It is vitally important that the discipline code is used in the circumstances where a suspension or investigation of a chief officer is under consideration because the alternative is the potential for misuse, or more seriously the perceived potential for misuse which can amount to the same outcome. Again, I cannot second guess the relationship that government and the legislative intended between the articles that you have read and this discipline code, but it is entirely reasonable to proceed on the assumption that that is its meaning. If it is not, I think that is a very serious matter because it does mean that a chief officer, setting aside Mr. Power and what has happened on 12th November, of police could be suspended without due process. That is a grave weakness. I am sure that is why the law is construed as it is and the disciplinary code exists. You said at the beginning, I think most helpfully, that this is a poorly written document. That is as may be, but we are where we are and we deal with it. One then has to say if it not part of the terms and conditions under Article 9(i) then it is difficult to conceive what status it has.
Senator B.I. Le Marquand:
Can I try and summarise what you have said, because you have said a lot of different things? I am not criticising you for that because it is complex. I think what your submission is, if I have correctly understood it, is that the discretion under 9(ii) to dismiss should be seen as being fettered by the procedure of the disciplinary code as incorporated under 9(i). Have I understood that correctly or is it more subtle than that?
Dr. T. Brain:I think it is capable of being construed in that way. I did not use the word “fettered”. I said I do not think ministers of democracies can have unfettered discretion which is maybe putting it in the negative, but I think is a subtle variation on it. I am not here to pass comment on the operation of the States of Jersey Government. What I am here to say is that everybody has rights. If what we are saying is that a chief officer of police, and in the case of Mr. Power, can simply be suspended and possibly sacked without due process that is very unsatisfactory.
Mr. M. Pinel:
Could I just interject, Minister, with my H.R. hat on? Having been the officer who was involved in Mr. Power’s original appointment back in 2000, I can confirm that the disciplinary code was issued to Mr. Power as part of his contract of employment and I would say that it is contractually binding on the States.
Dr. T. Brain:
I think that is most helpful.
Senator B.I. Le Marquand:
So then effectively under 9(i). That is helpful, thank you. Nevertheless, at the end of the day I think we would agree that I am going to have to decide what the 2.3.3 paragraph means in the context of the statutory provisions, is that not right?
Dr. T. Brain:I think you do have to decide that. I am trying to find a way of being more helpful to enable you to make that decision. I think it is difficult for us and I am not seeking to be obtuse on the issue to envisage what “more serious circumstances” are without further guidance on the issue from the code itself. It is very open-ended, but I think the word we have to concentrate on here is “serious” and that goes back to the issues that are raised in the letter of 12th November, but they do have to be raised in context. While these issues could be serious, we have to then say is it possible still for Mr. Power to have been given the opportunity to consider addressing them because while there are matters that have been raised here they are capable of explanation? Certainly they are capable of being placed in context. I do not wish to put all of the matters of what would properly be the investigation of potentially a hearing, but we do have to consider where some of the things that are fully applicable in a U.K. context relate to the circumstances of Jersey and the investigations which are under consideration. All of these matters here are capable of an explanation had the opportunity been given to provide that explanation and maybe any misunderstandings could have been cleared up at that point. Of course, what we had was a presentation which raised these issues of Mr. Power so in effect what we had was an accusation and a trial without a hearing and that amounts to lack of due process, lack of compliance with the code and I think, more crucially a failure to comply with human rights. Accusations were made; they were not made to Mr. Power and he was given no effective opportunity of answering them. These were management issues. These are not issues of personal misconduct. These are management issues and they are capable of a management explanation which could have been given and for which there was no opportunity to give. Can I just pause for a moment, because I have been talking for a long time? Issues have been raised and we are very happy that you raise these and we explore them in depth, but could I just take the opportunity to pause and just consult with Mr. Power for one moment?
Senator B.I. Le Marquand:
Please do because my next question (I am trying to operate within the structure of my letter of 30th January) and it is right that you speak to Mr. Power about it at this point, is whether that concluded your submissions in relation to what I have categorised here of the relationship of the disciplinary code and the Police Force Law to my review and its procedure.
Dr. T. Brain:I am conscious that Graham has not interjected so I must be going along the right lines, but I think that is a very relevant point to take time and clarify that issue. Thank you very much.
Senator B.I. Le Marquand:
Okay, thank you.
ADJOURNMENT
Senator B.I. Le Marquand:
We had a short break so that you could consider whether there were further matters you wanted to submit in relation to the first sentence of the fourth paragraph of my letter of 30th January and also to check that Mr. Power was happy with the submissions you had made.
Dr. T. Brain:
Thank you for that summary. Yes, there are 2 points that we would like to make. The first is that the document, the code, raised the doctrine of legitimate expectation, in other words what would a reasonable person expect from this document. The legitimate expectation that has been raised is that there would be some form of preliminary investigation and discussion, the reasonable person would so conclude. The second point made is that in Jersey, and I bow to everyone else in the room here, you follow Jersey law and procedures, but where local laws and procedures are unclear or absent then you quite usefully look for guidance in comparable jurisdictions. Here I can help. In England and Wales the chief executive to a police authority does indeed have the role of conducting a preliminary investigation in the event of a complaint being made and indeed to either not proceed with it at that point because it does not meet the technical requirements of a complaint or to seek dispensation from the Independent Police Complaints Commission to absolve the authority from an investigation. Should the Home Secretary be seeking to exercise his powers under section 42 of the Police Act 1996 to retire a Chief Constable in the interests of effectiveness and efficiency the Home Secretary (even the Home Secretary) must comply with the protocol both in respect of the suspension, which is very detailed, and with respect to the hearing that would follow. The process allows for the opportunity to put things right first. So if we look at the rights of legitimate expectation these were properly raised and could have been expected and indeed, as Mr. Pinel has helpfully explained, were part of the terms and conditions of appointment. In terms of using a precedent from elsewhere then the clerk, the chief executive, in a police authority in England and Wales has the ability to conduct preliminary investigation and section 42 does indeed fetter the discretion of the Home Secretary before an officer can be suspended.
Senator B.I. Le Marquand:
This is referred to somewhere in the bundle to do with the application for leave for future appeal I think. I have certainly read something somewhere which contains the section of the statute. There is a section 27, is there not?
Mr. M. Pinel:
The page numbers are 37 to 50.
Senator B.I. Le Marquand:
I have paragraph 17 to 33 in which it seems to be suspension.
Mr. M. Pinel:Yes.
Senator B.I. Le Marquand:Thank you for that. Can we go to (f) which is paginated; it is page 44, paragraph 17 to 33. Can I just press you on this?
Dr. T. Brain:
I have the protocol in front of me. Could I ask you to repeat the page number?
Senator B.I. Le Marquand:It is paginated at the bottom, by hand on my copy, as page 44.
Dr. T. Brain:And the paragraph number?
Senator B.I. Le Marquand:
Paragraph 17 to 23. Can I just press you on this submission? I think it is not that you are saying that this applies directly, because obviously this is a provision of a foreign statute in the terms of private international law; it is a U.K. statute. It is that you are asking me to look to U.K. principles, I suppose, as guidance in the absence of clear principles in Jersey, is that right?
Dr. T. Brain:
Certainly in absence of the kind of detailed principles that are set out in the various matters that deal with the suspension and investigation of chief officers. Clear distinctions are drawn in England and Wales which are less clear in this document, the code of practice that we are talking about today. The clear distinctions are between suspension for misconduct and a process that may result in suspension for management failings. The 2 are quite separate and trying to explore the discussion that you opened around “more serious circumstances”, I believe it is entirely reasonable to conclude that the “more serious circumstances” in 2.3.3 relate to issues
of personal misconduct, for example the commission of a crime, the interference with an investigation, misconduct with respect to a member of staff, more serious matters that would result in a criminal investigation and possibly a criminal conviction. Those I offer as a set of circumstances that are more serious. What we have in the circumstances we are describing here, if they amount to anything, relate to management issues that, while in themselves are of concern, are capable of being answered and had the preliminary investigation been concluded and had the discussion that the code allows for taken place they may have been answered. We have not been able to get to that position because the events of 12th November conflated all those purposes. What I am saying is that what you have in England and Wales is that clear blue water between misconduct around personal misconduct, alleged personal breaches of discipline, alleged criminal conduct and strategic management issues. They are distinguished in the England and Wales examples. I hope that helps you also move to what we might consider a greater understanding of the circumstances of 2.3.3 and will only say from our perspective that we are not in a position to articulate what might be more serious circumstances because these were not fully articulated in the circumstances of 12th November.
Senator B.I. Le Marquand:
I understand that. You still do not know so I understand that. That probably dealt with your submissions in relation to the first part of the first part, if I can put it that way. In the first part: “I look forward to the opportunity to make representation in writing or in person as you prefer about the relationship of the disciplinary code and the Police Force Law to my review and its procedure.” I think we have probably got to the end of that.
Dr. T. Brain:
I will have an observation to make around the use of language of 12th November. I would like to put that submission in at the appropriate place in the way you are conducting matters now. I would not want to take you off on another direction, but if I can just give you an indication of what that would be and then you can tell me whether it is right to raise it now or later, and that is the use of the term “consider your position”. After what appears to have been a 20-30 minute interview, Mr. Power was given the opportunity to consider his position. It is our understanding that this may be interpreted as in some way suggesting that he had the opportunity to respond to the matters that had been raised. I think in fairness an hour to do that is wholly inadequate in any circumstances, but particularly not having full details and not being given the opportunity to consult with a representative. The observation that I have to make is the use of the term “consider your position” is a well-understood euphemism for being asked to resign. That is the observation about the use of that language that I would want to make. I am more than happy to develop that in more detail now, but I will want to make an observation about that before we conclude.
Senator B.I. Le Marquand:
I am not sure we can go down that route because that is back into the area which right at the outset I indicated I was not going to look at.
Dr. T. Brain:
Well, apart from the fact, Minister, that it gave Mr. Power no room for manoeuvre to respond. He has been told to take it or leave it.
Senator B.I. Le Marquand:I understand well Mr. Power’s concerns in relation to the initial procedure, and they are well documented in the judicial review document, but, as I say, that is not an area that I want to look at today. Can I then look on in this because the way I had structured this was so that at some point I would start making decisions so that we would all know where we were going in terms of this. There is an issue as to whether I should break at this point to start making decisions or whether we can just carry on in terms of submissions so I will try to make 2 sets of decisions at the same time. Depending upon decisions I make, of course, the next sentence may or may not come into play. I will also give you the opportunity at this point to make representations about which documents or other information I should have before me in making my decision as to whether or not to continue your suspension because if I find that I could not properly suspend under the code until hearings have taken place then obviously I am going to find in favour of Mr. Power. If, on the other hand, I find that 2.3.3 has a life of its own, as it were (I am saying that in general terms rather in a specific sense), then of course one might move on in a different direction. So it is clear I have to make decisions in relation to the status of 2.3.3 and the interaction with that, which is what I said in the letter. If one looks down to the next paragraph of my letter, the next sentence then goes to deal with documents and other information and that is a separate issue. If we get to that point there are issues that need to be canvassed, but cannot realistically be canvassed until such time as I have made decisions in principle on the matter so far. Then we have in the second part of the review which may, depending on the outcome of the first part, take place on such an occasion immediately after the first part (“I look forward to the opportunity to make representations to be either in person or in writing as you wish”) as to the criteria which should govern my decision. In fact, you have started making submissions on that and what I wanted to canvass with you is do you want to carry on making submissions on that at this stage or not? I suppose I could hypothetically make decisions as to what the criteria are for me to follow if I get that far or if you prefer if I now adjourn for lunch and also to consider
my decisions on the submissions which are under the first part.
Dr. T. Brain:I think it would be helpful to break at this point and consider the first part because clearly we do view this as a continuum, but there is a stage in that continuum and if we are going to have to make representations as to why Graham should remain suspended it is helpful to have that initial consideration first. Having said that, I did hear a sharp intake of breath there so, Graham, you might want to say something.
Mr. G. Power:
No, I think that is fine. I think a time to break to discuss our position is good.
Senator B.I. Le Marquand:Yes, okay. Should we adjourn now? I am going to need to have some lunch. It is now just after 1.15 p.m. I am also going to need to consider the points that you have made and if I am able to give a decision on these issues then I will do so, although in an ideal world I would probably prefer to do those in writing. I may find myself able to do so verbally talking from notes, but we will see. It depends how complicated it gets in relation to that. Can I just check timeframes with you?
Dr. T. Brain:
I have the protocol in front of me. Could I ask you to repeat the page number?
Senator B.I. Le Marquand:It is paginated at the bottom, by hand on my copy, as page 44.
Dr. T. Brain:And the paragraph number?
Senator B.I. Le Marquand:
Paragraph 17 to 23. Can I just press you on this submission? I think it is not that you are saying that this applies directly, because obviously this is a provision of a foreign statute in the terms of private international law; it is a U.K. statute. It is that you are asking me to look to U.K. principles, I suppose, as guidance in the absence of clear principles in Jersey, is that right?
Dr. T. Brain:
Certainly in absence of the kind of detailed principles that are set out in the various matters that deal with the suspension and investigation of chief officers. Clear distinctions are drawn in England and Wales which are less clear in this document, the code of practice that we are talking about today. The clear distinctions are between suspension for misconduct and a process that may result in suspension for management failings. The 2 are quite separate and trying to explore the discussion that you opened around “more serious circumstances”, I believe it is entirely reasonable to conclude that the “more serious circumstances” in 2.3.3 relate to issues
of personal misconduct, for example the commission of a crime, the interference with an investigation, misconduct with respect to a member of staff, more serious matters that would result in a criminal investigation and possibly a criminal conviction. Those I offer as a set of circumstances that are more serious. What we have in the circumstances we are describing here, if they amount to anything, relate to management issues that, while in themselves are of concern, are capable of being answered and had the preliminary investigation been concluded and had the discussion that the code allows for taken place they may have been answered. We have not been able to get to that position because the events of 12th November conflated all those purposes. What I am saying is that what you have in England and Wales is that clear blue water between misconduct around personal misconduct, alleged personal breaches of discipline, alleged criminal conduct and strategic management issues. They are distinguished in the England and Wales examples. I hope that helps you also move to what we might consider a greater understanding of the circumstances of 2.3.3 and will only say from our perspective that we are not in a position to articulate what might be more serious circumstances because these were not fully articulated in the circumstances of 12th November.
Senator B.I. Le Marquand:
I understand that. You still do not know so I understand that. That probably dealt with your submissions in relation to the first part of the first part, if I can put it that way. In the first part: “I look forward to the opportunity to make representation in writing or in person as you prefer about the relationship of the disciplinary code and the Police Force Law to my review and its procedure.” I think we have probably got to the end of that.
Dr. T. Brain:
I will have an observation to make around the use of language of 12th November. I would like to put that submission in at the appropriate place in the way you are conducting matters now. I would not want to take you off on another direction, but if I can just give you an indication of what that would be and then you can tell me whether it is right to raise it now or later, and that is the use of the term “consider your position”. After what appears to have been a 20-30 minute interview, Mr. Power was given the opportunity to consider his position. It is our understanding that this may be interpreted as in some way suggesting that he had the opportunity to respond to the matters that had been raised. I think in fairness an hour to do that is wholly inadequate in any circumstances, but particularly not having full details and not being given the opportunity to consult with a representative. The observation that I have to make is the use of the term “consider your position” is a well-understood euphemism for being asked to resign. That is the observation about the use of that language that I would want to make. I am more than happy to develop that in more detail now, but I will want to make an observation about that before we conclude.
Senator B.I. Le Marquand:
I am not sure we can go down that route because that is back into the area which right at the outset I indicated I was not going to look at.
Dr. T. Brain:
Well, apart from the fact, Minister, that it gave Mr. Power no room for manoeuvre to respond. He has been told to take it or leave it.
Senator B.I. Le Marquand:I understand well Mr. Power’s concerns in relation to the initial procedure, and they are well documented in the judicial review document, but, as I say, that is not an area that I want to look at today. Can I then look on in this because the way I had structured this was so that at some point I would start making decisions so that we would all know where we were going in terms of this. There is an issue as to whether I should break at this point to start making decisions or whether we can just carry on in terms of submissions so I will try to make 2 sets of decisions at the same time. Depending upon decisions I make, of course, the next sentence may or may not come into play. I will also give you the opportunity at this point to make representations about which documents or other information I should have before me in making my decision as to whether or not to continue your suspension because if I find that I could not properly suspend under the code until hearings have taken place then obviously I am going to find in favour of Mr. Power. If, on the other hand, I find that 2.3.3 has a life of its own, as it were (I am saying that in general terms rather in a specific sense), then of course one might move on in a different direction. So it is clear I have to make decisions in relation to the status of 2.3.3 and the interaction with that, which is what I said in the letter. If one looks down to the next paragraph of my letter, the next sentence then goes to deal with documents and other information and that is a separate issue. If we get to that point there are issues that need to be canvassed, but cannot realistically be canvassed until such time as I have made decisions in principle on the matter so far. Then we have in the second part of the review which may, depending on the outcome of the first part, take place on such an occasion immediately after the first part (“I look forward to the opportunity to make representations to be either in person or in writing as you wish”) as to the criteria which should govern my decision. In fact, you have started making submissions on that and what I wanted to canvass with you is do you want to carry on making submissions on that at this stage or not? I suppose I could hypothetically make decisions as to what the criteria are for me to follow if I get that far or if you prefer if I now adjourn for lunch and also to consider
my decisions on the submissions which are under the first part.
Dr. T. Brain:I think it would be helpful to break at this point and consider the first part because clearly we do view this as a continuum, but there is a stage in that continuum and if we are going to have to make representations as to why Graham should remain suspended it is helpful to have that initial consideration first. Having said that, I did hear a sharp intake of breath there so, Graham, you might want to say something.
Mr. G. Power:
No, I think that is fine. I think a time to break to discuss our position is good.
Senator B.I. Le Marquand:Yes, okay. Should we adjourn now? I am going to need to have some lunch. It is now just after 1.15 p.m. I am also going to need to consider the points that you have made and if I am able to give a decision on these issues then I will do so, although in an ideal world I would probably prefer to do those in writing. I may find myself able to do so verbally talking from notes, but we will see. It depends how complicated it gets in relation to that. Can I just check timeframes with you?
Dr. T. Brain:Yes, I have to fly out at 5.10 p.m. and I need to obviously be at the airport half an hour before that otherwise I have an impromptu weekend in Jersey which is not partof the timetable. So I have to be at the airport no later than 4.40 p.m.
Senator B.I. Le Marquand:Shall we adjourn to 2.30 p.m? It gives me a little time to have some lunch. It gives me time to consider the decision, seeing if I can reduce that into writing or whether I am able to communicate it verbally in which case I would follow up with something in writing.
Dr. T. Brain:
I am only just making sure that we have complete clarity here: this is on the first part? We would obviously then make observations depending on the outcome, should it be necessary, as to why a suspension is no longer, from our perspective, necessary as distinct from it was improper in the first place. We understand that is what we are resuming to do after 2.30 p.m.
Senator B.I. Le Marquand:
That is correct. This is purely on the first part of the first sentence of the first part in the fourth paragraph of my letter.
Dr. T. Brain:
Thank you, and can I thank you for the diligence with which you have conducted the first part of these proceedings.
Senator B.I. Le Marquand:Shall we adjourn to 2.30 p.m? It gives me a little time to have some lunch. It gives me time to consider the decision, seeing if I can reduce that into writing or whether I am able to communicate it verbally in which case I would follow up with something in writing.
Dr. T. Brain:
I am only just making sure that we have complete clarity here: this is on the first part? We would obviously then make observations depending on the outcome, should it be necessary, as to why a suspension is no longer, from our perspective, necessary as distinct from it was improper in the first place. We understand that is what we are resuming to do after 2.30 p.m.
Senator B.I. Le Marquand:
That is correct. This is purely on the first part of the first sentence of the first part in the fourth paragraph of my letter.
Dr. T. Brain:
Thank you, and can I thank you for the diligence with which you have conducted the first part of these proceedings.
Senator B.I. Le Marquand:
Yes, that is all right and thank you for your presentation. I have tried to give you every opportunity to make submissions on other views or other possible views.
Dr. T. Brain:
I have no complaints at all about the way the ...
Senator B.I. Le Marquand:
At the end of the day, although I have received legal advice, I am going to make my own decision, as you would expect.
Dr. T. Brain:
Of course, thank you.
ADJOURNMENT
Senator B.I. Le Marquand:It is now just after 2.50 p.m. I am going to give a preliminary decision in relation to the first sentence of the fourth paragraph of my letter. I am sorry I have taken longer than I anticipate, but because I decided to attempt to deliver this verbally so we can go on and possibly look at other matters, I have to be more careful about wording than I would have been if I had a written text just to read out. I have to first make a decision about the relationship of the disciplinary code and the Police Force Law to the review and its procedure. Article 9(i) of the Police Force(Jersey) Law 1974 says: “The Chief Officer should be appointed by the States on such terms as to salary and conditions of service as the States Employment Board may from time to time determine.” Here is part of the employment package that was given to Mr. Power, that there was agreed a disciplinary code of conduct for the Chief Officer of Police. That has, in my view, become part of the conditions of service of the Chief Officer. I mentioned in passing that the code referred to the Home Affairs Committee and that has subsequently by operation of law become the Minister. That point was not in fact taken today, but I would have found that happened by operation of law because when ministerial government came in every reference in every agreement or document to “committee” becomes to “Minister”. However, Article 9(ii) reads: “The Chief Officer may be suspended from office by the Minister which shall refer the matter to the States at the next sitting and may be dismissed from office by the States.” There are before me issues in relation to the meaning of this code and the relation to the interaction of the code and the law. It is, I believe, common ground that the code was not well drafted. However, notwithstanding that, I have to seek to determine what it means, looking both at it and at the underlying law. Again, I quote various different sections. Firstly, section 1 is headed “Application principles” and it starts: “1.1 In the normal course of events the Home Affairs Minister will raise and attempt to resolve issues arisingwhich concern performance and conduct with the exception of the Chief Officer on a personal basis. Procedures described in this code will be used only where such efforts to resolve problems arising have failed.” Now, the complaint of Mr. Power (I am going to say complaint of Mr. Power although Dr. Brain was speaking on his behalf today as his representative) is that the disciplinary action has been taken without going through the provisions of section 1.1, in other words that section 1.1 has been bypassed and there has been no attempt at formal resolution and that, therefore, that is incorrect particularly because of the last sentence: “The procedures described in this code will be used only where such efforts to resolve problems arising have failed.”The next section is section 2 and section 2.1, the start of the preliminary investigations, and 2.1(i) reads as follows: “If circumstances arise where the Home Affairs Minister considers it justified he will notify in writing the Chief Executive to the Council of Ministers of any complaints relating to the discipline and performance capability against the Chief Officer. A copy of this letter will be given to the Chief Officer. At the discretion of the Chief Executive to the Council of Ministers there may be a meeting between the Home Affairs Minister and the Chief Officer will determine the requirement for the complaints to be pursued.” 2.1(ii): “In the event a complaint is pursued by the Home Affairs Minister a preliminary investigation will be undertaken by the Chief Executive to the Council of Ministers to establish the relevant facts. Facts will include statements from available witnesses and the Chief Officer. Following the investigation, the Chief Executive to the Council of Ministers will produce a written report which will be given to the Home Affairs Minister and the Chief Officer. The results of a preliminary investigation will be discussed by the Home Affairs Minister and the Chief Officer and Chief Executive to the Council of Ministers.” The second complaint of Mr. Power is that procedure has not been followed through either in a sense that no preliminary investigation has ever taken place and here, through Dr. Brain, has sought to distinguish with the concept of a preliminary investigation and the concept of a substantive investigation as if there were 2 stages of investigation. Now, I cannot see that is so and indeed I asked Dr. Brain to indicate to me where there were indications within the document itself that made this differentiation. If one looks at the section itself, of the longer section which I read out at 2.1.2, it appears to me that a matter which involves statements being taken from available witnesses and the Chief Officer, that kind of matter is in fact in itself that which Mr. Power is seeking to categorise as a substantive investigation. In short, what I am saying is that there are not 2 stages of the investigation, there is one, and that the preliminary investigation is of a substantial nature, if I may put it that way. Section 2.3 is headed: “Continued or serious breach of discipline/poor performance/capability” and that starts at section 2.3.1 in relation to a more serious situation and that can arise in 2 different ways, either by virtue of there being a more serious breach of discipline/poor performance/capability or by virtue of a second complaint, as it were, in relation to the same matter which has not been put right. The procedure which then follows includes number 2.3.2, the provision of notice of a hearing, full particulars of the complaint, a statement of rights under the procedures and details of procedure for the hearing. One of Mr. Power’s complaints again today was that he had not been given full particulars of the complaint but merely a general statement that it was an investigation in relation to management of the historic abuse inquiry. I note, of course, that in fact, even under the document as it is headed here, full particulars only come in when the matter is clearly heading towards a full hearing and not at an earlier stage. That is what I construe at 2.3.2. Then the next section is 2.3.3. This is the core of what I have to decide today and I note first of all that it is inserted between 2.3.1. and 2.3.2 and 2.3.4. In other words, it is inserted before the provisions in relation to a full hearing which is evidence, statements or whatever. Of course, its very terms by virtue of reference back to Article 9, reference to the matter of referral to the States of Jersey which is included in Article 9(2), indicates that this is so attached in this document to tie in the rest of the code with the provisions of Article 9(2) of the law and provides a unified system. The question which arises is as to whether this is a power and provision which can only be applied after the previous full procedure has been followed or whether it exists in its own right in more serous
circumstances. In other words, is this something that requires to have gone through the stage of preliminary investigation and heading towards a full hearing or can it happen in its own right and independently? Frankly that is the point that I really need to decide today. Now, it is clear to me that there must be circumstances of such seriousness that suspension is warranted prior to any of the other provisions having come into place. It would be extraordinary to find otherwise and I can take extreme examples of this which, of course, do not apply in this case. I want to make it clear that they do not apply in this case, but I can take extreme examples of dishonesty or serious criminal misconduct. In such cases it would be absolutely obvious and it would be nonsense to say that one has to go through all the preliminary stages before a decision on suspension could be made. Indeed in such cases emergency suspension could be the only reasonable way forward. The normal principles of personal resolution of a disagreement or intervention of the chief executive, or of a preliminary investigation as I have categorised it, followed by a hearing simply does not apply. I will comment in passing that 1.1 is not very well drafted but that the essence of it is the starting words: “In the normal course of events.” I construe the final sentence of that procedure described in this code in the context of those words and not as any sense overriding 2.3.3. However, the question arises as to how serious and what type of issue would be sufficient to warrant a 2.3.3 intervention without going through the other procedures. Mr. Power is suggesting it could only be if there was personal misconduct, any of these examples I have already given would be examples of personal misconduct, rather than management failure. There is nothing in the document here and nothing in the statute to help him in relation to that, or indeed to help me in relation to that, except this. The very section in which 2.3.3 is found is headed: “Continued or serious breach of discipline/poor performance/capability.” In other words, it does not seek to distinguish between personal misconduct and professional failures of management. I have no doubt that a matter of very poor performance/capability could be sufficiently serious in its own right to fall within 2.3.3. I mention in passing that today Mr. Power through Dr. Brain has sought to put before me matters of alleged failure in relation to the original procedure in relation to the suspension, that kind of thing, lack of notice that it was going to happen, lack of opportunities to address the Minister, et cetera. Of course these are matters which are already subject to judicial review. I have declined to judge these matters today. They are subject to the judicial review application but I have also taken a view that even if hypothetically Mr. Power was correct I would still have to keep up with the present review which I am conducting in order to determine whether he should be suspended pending the results of the current investigation. Of course that review I am seeking to conduct fairly and impartially, because I can. So to summarise, my position is that 2.3.3 is capable of standing on its own without going through the other procedures. If the allegation or circumstances are sufficiently serious and if other factors are present it would warrant a suspension, which of course I have not been addressed on. Thank you, gentlemen, for listening patiently to that. I think that we can now go in 2 different directions, although the time is starting to catch up on us. Can I make a suggestion of what I think is going to be the most useful use of our time? I think it would be most useful if we could address the issue of documents or other information I should have before making my decision. Already Dr. Brain has made some
submissions in relation to criteria which should govern my decision, which I have not dealt with in the decision that I have made, because I must confine myself to a very specific decision, but I suspect that the most urgent issue for us to address is the issue of documents and other matters. It is clear that the hearing is going to be continued on another day and it is right and proper to have that because yourself and Mr. Power need to have notice of whatever documents and materials are going to be put before me on that occasion.
Dr. T. Brain:
Yes, it would be helpful to have that.
Senator B.I. Le Marquand:
You must have them. It is essential in my view.
Dr. T. Brain:If that is to be the case, I propose that we do not continue at this point but adjourn until we have got a full disclosure of documentation.
Senator B.I. Le Marquand:Can I just explain what the problem is? There is a problem which I need to canvass with you, otherwise we are going to come back on 3 occasions or more. You do not know what the problem is; I do know what the problem is. In terms of initial documentation, my understanding is that the former Home Affairs Minister had before him essentially 2 things, although he also had been privy to briefings which I have not been privy to and to avoid it being privy to you. You will understand that one of the reasons why you have not been getting rapid responses from me was that the advice I was getting, both from the Solicitor General and from Human Resources, was that I should as far as possible distance myself from the arbitrary matters and the other disputes about disclosure and so on, so that I could be entirely independent. It has been made more difficult by the judicial review proceedings in which I am a party but I am still trying to maintain a professional distance as it were. So there are 2 documents. There is firstly a report written by the Deputy Police Chief. Now I think that it is generally accepted it is essential that you see that. I thought that was going to be disclosed anyway in the context of the judicial review and that, as you have gathered, I thought it had been, although I have misunderstood the position. That is essentially, but there may be some issues and Mr. Pinel may be able to help here of confidentiality and so on, and one of the concerns that I have in relation to proceedings, if I may be absolutely straight about it, is that I have tried as far as I have been able to, despite the efforts of politicians to ask me questions in the House repeatedly in this area, keep to the terms of the confidentiality clause. Unfortunately material has been getting into the public arena in relation to the proceedings which have not been coming from me or from any of my advisors, therefore I must assume has been coming from people with whom Mr. Power has confided. Now, I know there was a special difficulty in relation to the States hearing, I am well aware of the difficulties there, but I think I have to make it clear that if documents are going to be provided they must be provided on a strictly confidential basis to Mr. Power and to yourself and not be shared with other parties. We cannot have them appearing on blog sites or things of that nature.
Dr. T. Brain:If I may, I trust, Minister, I did not infer but I think it is capable of being inferred that you thought I have released these documents?
Senator B.I. Le Marquand:No, I did not say that.
Dr. T. Brain:Well, can I have this for the record?
Senator B.I. Le Marquand:
Yes. There is no suggestion.
Dr. T. Brain:Thank you for clarifying that.
Senator B.I. Le Marquand:If I can make it plain, the problem arose by the political route. The matter came up for debate in the States --
Dr. T. Brain:
That is as it may be.
Senator B.I. Le Marquand:-- that copies of documents were available. Now, that was a particular situation which within the political ambit I accept happened, but obviously we cannot have a situation where Mr. Power is going to be providing them to his political advisors who are going to be using them in States debates.
Dr. T. Brain:Of course I am not a political advisor. I have the advantage of not being in that situation.
Senator B.I. Le Marquand:I mean the point ...
Mr. G. Power:I understand the point. Again for the record, I am not conscious that I have released anything into the public domain at all, in fact I am sure that I have not. But I do have a problem and the problem is that I am not legally represented, I cannot offer you a single point of confidential contact that I would be able to offer you if I was represented and accordingly I need to take advice from whoever will offer it for free. That is the position I am in and that means that my circle of contacts and the people I consult with is greater than it would be in other circumstances. That is just a reality.
Dr. T. Brain:
I think if perhaps we can move on.
Senator B.I. Le Marquand:
We have that document which clearly ...
Dr. T. Brain:Sorry, I am relating to this document. When I say “move on” I do not wish to ... you have heard what Mr. Power has said and you have heard what I have said in respect of any disclosures we have made to anybody, so if we can just move on from that basis to discuss the disclosure of the document that you are now talking about. I think we need to just discuss this for a moment, because I am not a qualified legal practitioner here in Jersey, nor in England and Wales. Mr. Power is not represented. We do need, though, to have the capability of taking professional legal advice if we can and so we understand that, of course, legal practitioners, whether here or in England and Wales, are bound by their own professional codes of conduct and therefore the only caveat which I wish to consider discussing with you now and I enter into the basis of discussion at this point, not a submission, is that we should be allowed to get legal advice if that is available to us. Up until now it has not been available through the representative route of the staff association, but clearly I might want to look at whatever we are going to look at in a moment with professional legal advice. I am simply saying that under those circumstances confidentiality is between Mr. Power, myself and his legal advisor, should one be appointed.
Senator B.I. Le Marquand:Of course. Of course that must be so.
Dr. T. Brain:Thank you very much.
Senator B.I. Le Marquand:
But there are assumptions which I have, as a lawyer of 30 years’ standing, which I am sorry, but that is absolutely right, but I am just concerned that there is going to be confidential ... and I am going to move on to another document in a moment which is very, very confidential and where any leaking of that document to the public sector would be a very serious matter indeed. Okay. So the second area which is not a problem because it is in the public domain anyway, which I have not seen yet but we have available also, is the briefing notes in relation to the presentation that took place in November. I have not yet seen those, they were meant to be provided to me but I have not seen them yet. Those are in the public domain anyway so there is no problem with those.
Mr. G. Power:
I know nothing about them.
Senator B.I. Le Marquand:
But you should have them.
Mr. G. Power:
Is it the presentation of Ministers?
Senator B.I. Le Marquand:No, this was the press presentation in relation to ...
Mr. G. Power:
I do not have those.
Senator B.I. Le Marquand:Well, you must do and there is no difficulty with those.
Dr. T. Brain:
The press presentation given by David Walker plus the script that David followed, those are in the public domain and there is no problem.
Senator B.I. Le Marquand:There is no issue with those, but we must make sure you get those. This is the sensitive area. The sensitive area is that in his letter which you have not seen Mr. Walker makes reference partly to the Metropolitan Police report of which you are both aware. I have not seen that report, and indeed the previous Minister did not see that report, and the reason for that is because that report contains highly sensitive information regarding individual cases, naming potential offenders, victims, et cetera et cetera. Now my advisors do not want me to see that report because of that sort of sensitive information but I am aware that because reference has been made to it in Mr. Walker's letter that it not unreasonable that Mr. Power or yourself or some representatives, which in this case might not include lawyers because of the very sensitive area, be able to see the report and to check that in fact that which has been quoted from it has been accurately quoted. This is sensitive because even my own advisors do not want me to see it, I believe for good reasons, because I am not an operational police officer and I am the Home Affairs Minister. What we have been looking at, and this has again been a reason which has slightly delayed the responses in other matters, is mechanisms for dealing with the difficulty of it containing information which frankly is not relevant directly because only the information which
is referred to by Mr. Walker in his letter is really relevant. So what we have been looking at is different possibilities which are canvassed for you now to try and get around the difficulty. One of the difficulties is to try and persuade the Metropolitan Police to produce a redacted, reduced version of the report which would only effectively make reference to the matters which related to management structures and so on, and not to individual cases. But I am not sure whether they are going to agree to do that because there is a second difficulty which I will be absolutely open with you about, which is this, and it is a relationship issue in relation to the States of Jersey
Police and the Metropolitan Police who are not entirely happy that a report was produced for a particular purpose and is now going to be involved for a different purpose. But let me see if I can ... if it was not referred to in the letters it would not be in play at all.
Dr. T. Brain:Thank you.
Senator B.I. Le Marquand:It is because it is referred to that it is only right and fair that you have the opportunity to check that the references are fair and reasonable.
Dr. T. Brain:
Thank you. If I can try to help. No, no, I am trying to help. I think as far as and I literally mean “I am concerned” I would only be happy with a redacted version. I would not want there to be any suggestion that a name has inadvertently got into the public domain through this source. Now, I think it is slightly different for Mr. Power in that he is in situ here and it is a matter for his choice, but I think I would only wish to see a redacted version. It is of course very difficult to make a judgment about the value of a redacted version in advance of not seeing that. I think it is fair to say that should I think that having read it in the context of what we are talking about today, not in the context of the ultimate investigation and any hearing, that I cannot at first hearing think about the value of an unredacted version, if that is of assistance to you. The fact that it was A or B or C is not relevant to the question of management oversight.
Senator B.I. Le Marquand:
I think that is right.
Dr. T. Brain:
So if that helps you in respect of the document to which you are referring it would certainly help me because I do not wish to have the burden of being given an oversensitive document in these circumstances, and that would then be quite clear that a name did not get into the public domain from this source. But I would go one stage further, that I am not sure that that is crucial to considering the question of the management issues at the point we are talking about now. It may - and I am not seeking to prejudge the outcome of that - become relevant as we move through the stages of the investigation, but if we are talking about a review of suspension, its continued relevancy, its continued propriety, then I am not sure that knowing what A, B, or C did at this stage is relevant to me. It could possibly be to Mr. Power and I will leave him to speak for himself at this point because the only reason I say it is because he might say: “There is a name here that links with another name and this has an outcome.” So I am not seeking to prejudge what his view might be but I will let him advise me on that.
Senator B.I. Le Marquand:I do not think that will happen but, okay, can I suggest a way forward, having indicated the problem to you? I think what we have to do is to dispose of the other 2 documents, the letter of Mr. Walker and the other document which is in the public
sector anyway. We then basically will seek to get a redacted version which only deals with the relevant areas of text references. If we can get that done all well and good. If we cannot get that done by the Metropolitan Police because they refuse to co-operate with the process then I think it is going to have to be done by some third party which is difficult at the moment to see who. The alternative, of course, is simply to allow Mr. Power to have access to the document which he would probably need to have anyway if there was a redacted version, so that he could satisfy himself that the report did say the things which Mr. Walker says it says.
Dr. T. Brain:The only difficulty with the latter course of advice is Mr. Power is entitled to receive advice and representation and consequently he would have every reasonable expectation of being able to discuss his findings with either a legal representative, which seems unlikely because one cannot be obtained within his means, or with me. I have already stated my own opinion about the necessity of receiving specific details from individuals which will mean absolutely nothing to me and I do not believe be of help in determining the issues that are relevant to the circumstances.
Senator B.I. Le Marquand:I am fairly relaxed about that because Mr. Power is still the Police Chief and he is still bound by confidentiality in consideration of which is quite well known and he will be well aware in relation to that. But can we try and get a redacted version? If we get a redacted version then we will disclose it subject to ...
Dr. T. Brain:
You obviously saw that we did not have time for a consultation and I gave my opinion. I am just checking with Graham that he is content that we work on the basis of a redacted version from this point onwards?
Mr. G. Power:Yes, that is okay.
Dr. T. Brain:So if that assists in ...
Senator B.I. Le Marquand:
That is very helpful. Because I do not want to sift through the detail either, it is best if I do not. The trouble is Jersey is a small place and what might be known to some party or other ...
Dr. T. Brain:
Just to clarify one further point. We did say that we might be in a position, and I do not think we will be, to seek some legal advice on this particular stage of proceedings. Before we would do that I would think that we would notify you that we were moving to that process and with whom the representative, the advocate or the legal representative in England and Wales would be so that this would not be something that would move to a legal representative without your knowledge. It is not about seeking permission but it is about just due notice so that you know the stage of
disclosure which is reached and with whom. I think that would be reasonable.
Senator B.I. Le Marquand:
That is right. I, in the meanwhile, will have to get advice from my own advisors on what we should be seeking in terms of assurances on confidentiality and things like that. We are talking openly but do you understand, because I am a Minister I have to have advice? I do not always take the advice, but I have to receive it.
Dr. T. Brain:
We are not in any way quibbling with that proposition.
Senator B.I. Le Marquand:Okay. Now the other issue is this: what else should I have before me, because at the moment there are no other reports other than the interim report from the Metropolitan Police? There is nothing else at this stage in time. What would you want to put before me? Clearly I do not want to be conducting a full hearing with evidence and I do not think you are urging me to do that from our discussion, but having seen the thing it is right and proper that I should be able to put in some sort of written rebuttal or whatever which I can consider alongside.
Dr. T. Brain:Yes, you are absolutely right, I think we have to all be careful here and I sought to do this today, not get into a preliminary hearing before there has been a preliminary investigation, so I think that is undesirable at several levels. So I think this is ... again we are discussing these points. We should endeavour mutually to restrict ourselves to the issues at stake for the purposes of the review, although the question of seriousness is --
Senator B.I. Le Marquand:
A matter for observation.
Dr. T. Brain:
-- still in play.
Senator B.I. Le Marquand:
Indeed the question of criteria, although you started talking about the criteria is still in play.
Dr. T. Brain:
I think what you said there is a very helpful suggestion. I think this gives us the opportunity in view of your observations around the process and submissions so far. To enable us to ensure that you have the full documentation that we consider relevant we would need some time to consider that but I think what I would suggest is that we receive the documentation that you have been referring to, we have time to absorb it, we have time to consider how we then resubmit for the remaining considerations. That may include some of the documentation that we have referred to already. We have alluded to various practices and procedures elsewhere that may be helpful. It will be a matter ... I have to say in advance, all of these things are available but they might be relevant and helpful to you.
Senator B.I. Le Marquand:
That is fine. Of course one of the difficulties I have is that I have only within the documents that we will be looking at, will still only have preliminary stuff until there is a report or whatever I have nothing more than preliminary things.
Dr. T. Brain:Of course. We are all labouring under that problem.
Senator B.I. Le Marquand:
We do not even have them.
Yes, that is all right and thank you for your presentation. I have tried to give you every opportunity to make submissions on other views or other possible views.
Dr. T. Brain:
I have no complaints at all about the way the ...
Senator B.I. Le Marquand:
At the end of the day, although I have received legal advice, I am going to make my own decision, as you would expect.
Dr. T. Brain:
Of course, thank you.
ADJOURNMENT
Senator B.I. Le Marquand:It is now just after 2.50 p.m. I am going to give a preliminary decision in relation to the first sentence of the fourth paragraph of my letter. I am sorry I have taken longer than I anticipate, but because I decided to attempt to deliver this verbally so we can go on and possibly look at other matters, I have to be more careful about wording than I would have been if I had a written text just to read out. I have to first make a decision about the relationship of the disciplinary code and the Police Force Law to the review and its procedure. Article 9(i) of the Police Force(Jersey) Law 1974 says: “The Chief Officer should be appointed by the States on such terms as to salary and conditions of service as the States Employment Board may from time to time determine.” Here is part of the employment package that was given to Mr. Power, that there was agreed a disciplinary code of conduct for the Chief Officer of Police. That has, in my view, become part of the conditions of service of the Chief Officer. I mentioned in passing that the code referred to the Home Affairs Committee and that has subsequently by operation of law become the Minister. That point was not in fact taken today, but I would have found that happened by operation of law because when ministerial government came in every reference in every agreement or document to “committee” becomes to “Minister”. However, Article 9(ii) reads: “The Chief Officer may be suspended from office by the Minister which shall refer the matter to the States at the next sitting and may be dismissed from office by the States.” There are before me issues in relation to the meaning of this code and the relation to the interaction of the code and the law. It is, I believe, common ground that the code was not well drafted. However, notwithstanding that, I have to seek to determine what it means, looking both at it and at the underlying law. Again, I quote various different sections. Firstly, section 1 is headed “Application principles” and it starts: “1.1 In the normal course of events the Home Affairs Minister will raise and attempt to resolve issues arisingwhich concern performance and conduct with the exception of the Chief Officer on a personal basis. Procedures described in this code will be used only where such efforts to resolve problems arising have failed.” Now, the complaint of Mr. Power (I am going to say complaint of Mr. Power although Dr. Brain was speaking on his behalf today as his representative) is that the disciplinary action has been taken without going through the provisions of section 1.1, in other words that section 1.1 has been bypassed and there has been no attempt at formal resolution and that, therefore, that is incorrect particularly because of the last sentence: “The procedures described in this code will be used only where such efforts to resolve problems arising have failed.”The next section is section 2 and section 2.1, the start of the preliminary investigations, and 2.1(i) reads as follows: “If circumstances arise where the Home Affairs Minister considers it justified he will notify in writing the Chief Executive to the Council of Ministers of any complaints relating to the discipline and performance capability against the Chief Officer. A copy of this letter will be given to the Chief Officer. At the discretion of the Chief Executive to the Council of Ministers there may be a meeting between the Home Affairs Minister and the Chief Officer will determine the requirement for the complaints to be pursued.” 2.1(ii): “In the event a complaint is pursued by the Home Affairs Minister a preliminary investigation will be undertaken by the Chief Executive to the Council of Ministers to establish the relevant facts. Facts will include statements from available witnesses and the Chief Officer. Following the investigation, the Chief Executive to the Council of Ministers will produce a written report which will be given to the Home Affairs Minister and the Chief Officer. The results of a preliminary investigation will be discussed by the Home Affairs Minister and the Chief Officer and Chief Executive to the Council of Ministers.” The second complaint of Mr. Power is that procedure has not been followed through either in a sense that no preliminary investigation has ever taken place and here, through Dr. Brain, has sought to distinguish with the concept of a preliminary investigation and the concept of a substantive investigation as if there were 2 stages of investigation. Now, I cannot see that is so and indeed I asked Dr. Brain to indicate to me where there were indications within the document itself that made this differentiation. If one looks at the section itself, of the longer section which I read out at 2.1.2, it appears to me that a matter which involves statements being taken from available witnesses and the Chief Officer, that kind of matter is in fact in itself that which Mr. Power is seeking to categorise as a substantive investigation. In short, what I am saying is that there are not 2 stages of the investigation, there is one, and that the preliminary investigation is of a substantial nature, if I may put it that way. Section 2.3 is headed: “Continued or serious breach of discipline/poor performance/capability” and that starts at section 2.3.1 in relation to a more serious situation and that can arise in 2 different ways, either by virtue of there being a more serious breach of discipline/poor performance/capability or by virtue of a second complaint, as it were, in relation to the same matter which has not been put right. The procedure which then follows includes number 2.3.2, the provision of notice of a hearing, full particulars of the complaint, a statement of rights under the procedures and details of procedure for the hearing. One of Mr. Power’s complaints again today was that he had not been given full particulars of the complaint but merely a general statement that it was an investigation in relation to management of the historic abuse inquiry. I note, of course, that in fact, even under the document as it is headed here, full particulars only come in when the matter is clearly heading towards a full hearing and not at an earlier stage. That is what I construe at 2.3.2. Then the next section is 2.3.3. This is the core of what I have to decide today and I note first of all that it is inserted between 2.3.1. and 2.3.2 and 2.3.4. In other words, it is inserted before the provisions in relation to a full hearing which is evidence, statements or whatever. Of course, its very terms by virtue of reference back to Article 9, reference to the matter of referral to the States of Jersey which is included in Article 9(2), indicates that this is so attached in this document to tie in the rest of the code with the provisions of Article 9(2) of the law and provides a unified system. The question which arises is as to whether this is a power and provision which can only be applied after the previous full procedure has been followed or whether it exists in its own right in more serous
circumstances. In other words, is this something that requires to have gone through the stage of preliminary investigation and heading towards a full hearing or can it happen in its own right and independently? Frankly that is the point that I really need to decide today. Now, it is clear to me that there must be circumstances of such seriousness that suspension is warranted prior to any of the other provisions having come into place. It would be extraordinary to find otherwise and I can take extreme examples of this which, of course, do not apply in this case. I want to make it clear that they do not apply in this case, but I can take extreme examples of dishonesty or serious criminal misconduct. In such cases it would be absolutely obvious and it would be nonsense to say that one has to go through all the preliminary stages before a decision on suspension could be made. Indeed in such cases emergency suspension could be the only reasonable way forward. The normal principles of personal resolution of a disagreement or intervention of the chief executive, or of a preliminary investigation as I have categorised it, followed by a hearing simply does not apply. I will comment in passing that 1.1 is not very well drafted but that the essence of it is the starting words: “In the normal course of events.” I construe the final sentence of that procedure described in this code in the context of those words and not as any sense overriding 2.3.3. However, the question arises as to how serious and what type of issue would be sufficient to warrant a 2.3.3 intervention without going through the other procedures. Mr. Power is suggesting it could only be if there was personal misconduct, any of these examples I have already given would be examples of personal misconduct, rather than management failure. There is nothing in the document here and nothing in the statute to help him in relation to that, or indeed to help me in relation to that, except this. The very section in which 2.3.3 is found is headed: “Continued or serious breach of discipline/poor performance/capability.” In other words, it does not seek to distinguish between personal misconduct and professional failures of management. I have no doubt that a matter of very poor performance/capability could be sufficiently serious in its own right to fall within 2.3.3. I mention in passing that today Mr. Power through Dr. Brain has sought to put before me matters of alleged failure in relation to the original procedure in relation to the suspension, that kind of thing, lack of notice that it was going to happen, lack of opportunities to address the Minister, et cetera. Of course these are matters which are already subject to judicial review. I have declined to judge these matters today. They are subject to the judicial review application but I have also taken a view that even if hypothetically Mr. Power was correct I would still have to keep up with the present review which I am conducting in order to determine whether he should be suspended pending the results of the current investigation. Of course that review I am seeking to conduct fairly and impartially, because I can. So to summarise, my position is that 2.3.3 is capable of standing on its own without going through the other procedures. If the allegation or circumstances are sufficiently serious and if other factors are present it would warrant a suspension, which of course I have not been addressed on. Thank you, gentlemen, for listening patiently to that. I think that we can now go in 2 different directions, although the time is starting to catch up on us. Can I make a suggestion of what I think is going to be the most useful use of our time? I think it would be most useful if we could address the issue of documents or other information I should have before making my decision. Already Dr. Brain has made some
submissions in relation to criteria which should govern my decision, which I have not dealt with in the decision that I have made, because I must confine myself to a very specific decision, but I suspect that the most urgent issue for us to address is the issue of documents and other matters. It is clear that the hearing is going to be continued on another day and it is right and proper to have that because yourself and Mr. Power need to have notice of whatever documents and materials are going to be put before me on that occasion.
Dr. T. Brain:
Yes, it would be helpful to have that.
Senator B.I. Le Marquand:
You must have them. It is essential in my view.
Dr. T. Brain:If that is to be the case, I propose that we do not continue at this point but adjourn until we have got a full disclosure of documentation.
Senator B.I. Le Marquand:Can I just explain what the problem is? There is a problem which I need to canvass with you, otherwise we are going to come back on 3 occasions or more. You do not know what the problem is; I do know what the problem is. In terms of initial documentation, my understanding is that the former Home Affairs Minister had before him essentially 2 things, although he also had been privy to briefings which I have not been privy to and to avoid it being privy to you. You will understand that one of the reasons why you have not been getting rapid responses from me was that the advice I was getting, both from the Solicitor General and from Human Resources, was that I should as far as possible distance myself from the arbitrary matters and the other disputes about disclosure and so on, so that I could be entirely independent. It has been made more difficult by the judicial review proceedings in which I am a party but I am still trying to maintain a professional distance as it were. So there are 2 documents. There is firstly a report written by the Deputy Police Chief. Now I think that it is generally accepted it is essential that you see that. I thought that was going to be disclosed anyway in the context of the judicial review and that, as you have gathered, I thought it had been, although I have misunderstood the position. That is essentially, but there may be some issues and Mr. Pinel may be able to help here of confidentiality and so on, and one of the concerns that I have in relation to proceedings, if I may be absolutely straight about it, is that I have tried as far as I have been able to, despite the efforts of politicians to ask me questions in the House repeatedly in this area, keep to the terms of the confidentiality clause. Unfortunately material has been getting into the public arena in relation to the proceedings which have not been coming from me or from any of my advisors, therefore I must assume has been coming from people with whom Mr. Power has confided. Now, I know there was a special difficulty in relation to the States hearing, I am well aware of the difficulties there, but I think I have to make it clear that if documents are going to be provided they must be provided on a strictly confidential basis to Mr. Power and to yourself and not be shared with other parties. We cannot have them appearing on blog sites or things of that nature.
Dr. T. Brain:If I may, I trust, Minister, I did not infer but I think it is capable of being inferred that you thought I have released these documents?
Senator B.I. Le Marquand:No, I did not say that.
Dr. T. Brain:Well, can I have this for the record?
Senator B.I. Le Marquand:
Yes. There is no suggestion.
Dr. T. Brain:Thank you for clarifying that.
Senator B.I. Le Marquand:If I can make it plain, the problem arose by the political route. The matter came up for debate in the States --
Dr. T. Brain:
That is as it may be.
Senator B.I. Le Marquand:-- that copies of documents were available. Now, that was a particular situation which within the political ambit I accept happened, but obviously we cannot have a situation where Mr. Power is going to be providing them to his political advisors who are going to be using them in States debates.
Dr. T. Brain:Of course I am not a political advisor. I have the advantage of not being in that situation.
Senator B.I. Le Marquand:I mean the point ...
Mr. G. Power:I understand the point. Again for the record, I am not conscious that I have released anything into the public domain at all, in fact I am sure that I have not. But I do have a problem and the problem is that I am not legally represented, I cannot offer you a single point of confidential contact that I would be able to offer you if I was represented and accordingly I need to take advice from whoever will offer it for free. That is the position I am in and that means that my circle of contacts and the people I consult with is greater than it would be in other circumstances. That is just a reality.
Dr. T. Brain:
I think if perhaps we can move on.
Senator B.I. Le Marquand:
We have that document which clearly ...
Dr. T. Brain:Sorry, I am relating to this document. When I say “move on” I do not wish to ... you have heard what Mr. Power has said and you have heard what I have said in respect of any disclosures we have made to anybody, so if we can just move on from that basis to discuss the disclosure of the document that you are now talking about. I think we need to just discuss this for a moment, because I am not a qualified legal practitioner here in Jersey, nor in England and Wales. Mr. Power is not represented. We do need, though, to have the capability of taking professional legal advice if we can and so we understand that, of course, legal practitioners, whether here or in England and Wales, are bound by their own professional codes of conduct and therefore the only caveat which I wish to consider discussing with you now and I enter into the basis of discussion at this point, not a submission, is that we should be allowed to get legal advice if that is available to us. Up until now it has not been available through the representative route of the staff association, but clearly I might want to look at whatever we are going to look at in a moment with professional legal advice. I am simply saying that under those circumstances confidentiality is between Mr. Power, myself and his legal advisor, should one be appointed.
Senator B.I. Le Marquand:Of course. Of course that must be so.
Dr. T. Brain:Thank you very much.
Senator B.I. Le Marquand:
But there are assumptions which I have, as a lawyer of 30 years’ standing, which I am sorry, but that is absolutely right, but I am just concerned that there is going to be confidential ... and I am going to move on to another document in a moment which is very, very confidential and where any leaking of that document to the public sector would be a very serious matter indeed. Okay. So the second area which is not a problem because it is in the public domain anyway, which I have not seen yet but we have available also, is the briefing notes in relation to the presentation that took place in November. I have not yet seen those, they were meant to be provided to me but I have not seen them yet. Those are in the public domain anyway so there is no problem with those.
Mr. G. Power:
I know nothing about them.
Senator B.I. Le Marquand:
But you should have them.
Mr. G. Power:
Is it the presentation of Ministers?
Senator B.I. Le Marquand:No, this was the press presentation in relation to ...
Mr. G. Power:
I do not have those.
Senator B.I. Le Marquand:Well, you must do and there is no difficulty with those.
Dr. T. Brain:
The press presentation given by David Walker plus the script that David followed, those are in the public domain and there is no problem.
Senator B.I. Le Marquand:There is no issue with those, but we must make sure you get those. This is the sensitive area. The sensitive area is that in his letter which you have not seen Mr. Walker makes reference partly to the Metropolitan Police report of which you are both aware. I have not seen that report, and indeed the previous Minister did not see that report, and the reason for that is because that report contains highly sensitive information regarding individual cases, naming potential offenders, victims, et cetera et cetera. Now my advisors do not want me to see that report because of that sort of sensitive information but I am aware that because reference has been made to it in Mr. Walker's letter that it not unreasonable that Mr. Power or yourself or some representatives, which in this case might not include lawyers because of the very sensitive area, be able to see the report and to check that in fact that which has been quoted from it has been accurately quoted. This is sensitive because even my own advisors do not want me to see it, I believe for good reasons, because I am not an operational police officer and I am the Home Affairs Minister. What we have been looking at, and this has again been a reason which has slightly delayed the responses in other matters, is mechanisms for dealing with the difficulty of it containing information which frankly is not relevant directly because only the information which
is referred to by Mr. Walker in his letter is really relevant. So what we have been looking at is different possibilities which are canvassed for you now to try and get around the difficulty. One of the difficulties is to try and persuade the Metropolitan Police to produce a redacted, reduced version of the report which would only effectively make reference to the matters which related to management structures and so on, and not to individual cases. But I am not sure whether they are going to agree to do that because there is a second difficulty which I will be absolutely open with you about, which is this, and it is a relationship issue in relation to the States of Jersey
Police and the Metropolitan Police who are not entirely happy that a report was produced for a particular purpose and is now going to be involved for a different purpose. But let me see if I can ... if it was not referred to in the letters it would not be in play at all.
Dr. T. Brain:Thank you.
Senator B.I. Le Marquand:It is because it is referred to that it is only right and fair that you have the opportunity to check that the references are fair and reasonable.
Dr. T. Brain:
Thank you. If I can try to help. No, no, I am trying to help. I think as far as and I literally mean “I am concerned” I would only be happy with a redacted version. I would not want there to be any suggestion that a name has inadvertently got into the public domain through this source. Now, I think it is slightly different for Mr. Power in that he is in situ here and it is a matter for his choice, but I think I would only wish to see a redacted version. It is of course very difficult to make a judgment about the value of a redacted version in advance of not seeing that. I think it is fair to say that should I think that having read it in the context of what we are talking about today, not in the context of the ultimate investigation and any hearing, that I cannot at first hearing think about the value of an unredacted version, if that is of assistance to you. The fact that it was A or B or C is not relevant to the question of management oversight.
Senator B.I. Le Marquand:
I think that is right.
Dr. T. Brain:
So if that helps you in respect of the document to which you are referring it would certainly help me because I do not wish to have the burden of being given an oversensitive document in these circumstances, and that would then be quite clear that a name did not get into the public domain from this source. But I would go one stage further, that I am not sure that that is crucial to considering the question of the management issues at the point we are talking about now. It may - and I am not seeking to prejudge the outcome of that - become relevant as we move through the stages of the investigation, but if we are talking about a review of suspension, its continued relevancy, its continued propriety, then I am not sure that knowing what A, B, or C did at this stage is relevant to me. It could possibly be to Mr. Power and I will leave him to speak for himself at this point because the only reason I say it is because he might say: “There is a name here that links with another name and this has an outcome.” So I am not seeking to prejudge what his view might be but I will let him advise me on that.
Senator B.I. Le Marquand:I do not think that will happen but, okay, can I suggest a way forward, having indicated the problem to you? I think what we have to do is to dispose of the other 2 documents, the letter of Mr. Walker and the other document which is in the public
sector anyway. We then basically will seek to get a redacted version which only deals with the relevant areas of text references. If we can get that done all well and good. If we cannot get that done by the Metropolitan Police because they refuse to co-operate with the process then I think it is going to have to be done by some third party which is difficult at the moment to see who. The alternative, of course, is simply to allow Mr. Power to have access to the document which he would probably need to have anyway if there was a redacted version, so that he could satisfy himself that the report did say the things which Mr. Walker says it says.
Dr. T. Brain:The only difficulty with the latter course of advice is Mr. Power is entitled to receive advice and representation and consequently he would have every reasonable expectation of being able to discuss his findings with either a legal representative, which seems unlikely because one cannot be obtained within his means, or with me. I have already stated my own opinion about the necessity of receiving specific details from individuals which will mean absolutely nothing to me and I do not believe be of help in determining the issues that are relevant to the circumstances.
Senator B.I. Le Marquand:I am fairly relaxed about that because Mr. Power is still the Police Chief and he is still bound by confidentiality in consideration of which is quite well known and he will be well aware in relation to that. But can we try and get a redacted version? If we get a redacted version then we will disclose it subject to ...
Dr. T. Brain:
You obviously saw that we did not have time for a consultation and I gave my opinion. I am just checking with Graham that he is content that we work on the basis of a redacted version from this point onwards?
Mr. G. Power:Yes, that is okay.
Dr. T. Brain:So if that assists in ...
Senator B.I. Le Marquand:
That is very helpful. Because I do not want to sift through the detail either, it is best if I do not. The trouble is Jersey is a small place and what might be known to some party or other ...
Dr. T. Brain:
Just to clarify one further point. We did say that we might be in a position, and I do not think we will be, to seek some legal advice on this particular stage of proceedings. Before we would do that I would think that we would notify you that we were moving to that process and with whom the representative, the advocate or the legal representative in England and Wales would be so that this would not be something that would move to a legal representative without your knowledge. It is not about seeking permission but it is about just due notice so that you know the stage of
disclosure which is reached and with whom. I think that would be reasonable.
Senator B.I. Le Marquand:
That is right. I, in the meanwhile, will have to get advice from my own advisors on what we should be seeking in terms of assurances on confidentiality and things like that. We are talking openly but do you understand, because I am a Minister I have to have advice? I do not always take the advice, but I have to receive it.
Dr. T. Brain:
We are not in any way quibbling with that proposition.
Senator B.I. Le Marquand:Okay. Now the other issue is this: what else should I have before me, because at the moment there are no other reports other than the interim report from the Metropolitan Police? There is nothing else at this stage in time. What would you want to put before me? Clearly I do not want to be conducting a full hearing with evidence and I do not think you are urging me to do that from our discussion, but having seen the thing it is right and proper that I should be able to put in some sort of written rebuttal or whatever which I can consider alongside.
Dr. T. Brain:Yes, you are absolutely right, I think we have to all be careful here and I sought to do this today, not get into a preliminary hearing before there has been a preliminary investigation, so I think that is undesirable at several levels. So I think this is ... again we are discussing these points. We should endeavour mutually to restrict ourselves to the issues at stake for the purposes of the review, although the question of seriousness is --
Senator B.I. Le Marquand:
A matter for observation.
Dr. T. Brain:
-- still in play.
Senator B.I. Le Marquand:
Indeed the question of criteria, although you started talking about the criteria is still in play.
Dr. T. Brain:
I think what you said there is a very helpful suggestion. I think this gives us the opportunity in view of your observations around the process and submissions so far. To enable us to ensure that you have the full documentation that we consider relevant we would need some time to consider that but I think what I would suggest is that we receive the documentation that you have been referring to, we have time to absorb it, we have time to consider how we then resubmit for the remaining considerations. That may include some of the documentation that we have referred to already. We have alluded to various practices and procedures elsewhere that may be helpful. It will be a matter ... I have to say in advance, all of these things are available but they might be relevant and helpful to you.
Senator B.I. Le Marquand:
That is fine. Of course one of the difficulties I have is that I have only within the documents that we will be looking at, will still only have preliminary stuff until there is a report or whatever I have nothing more than preliminary things.
Dr. T. Brain:Of course. We are all labouring under that problem.
Senator B.I. Le Marquand:
We do not even have them.
Dr. T. Brain:I mean clearly there are ... sorry.
Senator B.I. Le Marquand:
I have not had access to a mass of information, in fact.
Dr. T. Brain:
No, and nor would we, I think, feel that that is relevant to this morning’s and this afternoon’s proceedings, because we are talking about an administrative review of suspension, whether that suspension should be continued, in our view whether it was lawful and appropriate in the first place, but whatever our view of that is we have reached a position now of whether that suspension should be continued and we do not want to get into, any of us I think, trying aspects of the case properly reserved for other parts of the procedure.
Senator B.I. Le Marquand:
Yes, okay, I am happy with that.
Dr. T. Brain:
So I would like to just, if I may, take a couple of minutes with Graham and then we will come back and determine from our perspective the next steps. So we will be a few moments.
ADJOURNMENT
Dr. T. Brain:First of all, thank you very much for your very full explanation as to why you have come to the conclusion that you have and, secondly, thank you for the offer of further documentation, subject to the steps and processes that we discussed earlier. I am very grateful for that. Having said that, while thanking you for your very full disclosure of your findings, I am sure it will come as no surprise to you that we still disagree with them and they may be subject to further process, but we are not going to make further representations about that today.
Senator B.I. Le Marquand:I accept that. Part of the process that I have been doing is trying to set things out very clearly and carefully should you wish to judicially review the matters. It assists the court and is part of the reason for the tape recording.
Dr. T. Brain:Thank you. In a sense of mutual exchange of documentation, we did say that we will be considering what other documents may be helpful for your deliberations, but I think there is some documentation that you should be aware of in the short term and may be of help to you in that time, and that is referred to on page 3 of Mr. Power’s letter of 12th February and it is the penultimate paragraph that commences: “You might wish ...” I will just wait for you to have that paragraph in front of you, page 3, the last but one paragraph: “You might wish ...” I will read it anyway: “You might wish to be satisfied that appropriate steps were taken to address the skill gap at the relevant time and in this respect you may wish to consider the role of senior experts
recommended by the Association of Chief Police Officers who provided their consultancy service for the investigation and produced detailed reports and advice. My recollection is that these reports contain positive comment on the extent to which the recommended actions were being followed. I do not recall if the reports covered the extent to which these experts gave direct briefings to Ministers but if this is doubted I am sure that those in office at the time will recall that this happened on a regular basis.” The point is that this is not the report or briefing that triggered the events of 12th November. These are other reports by A.C.P.O. (Association of Chief Police Officers) experts and the chief of which was André Baker who heads the A.C.P.O. Homicide Working Group and we would commend your attention to those reports. We think there are at least 3, there may be more, and I am afraid we are not in a position to be specific on that but I am sure some inquiries with States of Jersey Police will clarify that matter. I think we have just 2 more observations to make for today and, as it were, for the record. The first is that Mr. Power has now been suspended for 3 months and, to put it simply, nothing has happened. This is the first move that we have seen in respect of the investigation. We are grateful as I said right at the start of this proceedings, that you, Minister, have initiated the review process. We understand your desire that you are fully briefed and advised and that is not subject to any criticism from us, but what is subject to a great deal of concern is that Mr. Power has been suspended for 3 months and that there has been no activity in respect to providing him with further notice of the detailed concerns with respect to his conduct or the opportunity for him to clear his name. The second point is that in respect of the continued suspension - and we leave this as a hanging indent for further consideration - the burden of proof for continued suspension rests with the suspending authority. Now we will take the opportunity to make further submissions. There were submissions that we could have made today in respect to continuing the suspension but you have helpfully indicated that those submissions will be aided by the further documentation that you have decided to make available to us and obviously we would want to give those documents full consideration before finalising our submissions. So, in essence, we are disappointed that we cannot resolve the matter of suspension today but we are grateful that this matter has been given a very full consideration by yourself and I hope you will view the submissions that we have made to be helpful in that detailed consideration, but we now do need to take time to look at the further documentation and submit our final views on the validity of
continuing suspension after considering those documents.
Senator B.I. Le Marquand:Okay, that is fine. Thank you very much. I think that is probably as far as we can go today.
Dr. T. Brain:I think it is, Minister.
Senator B.I. Le Marquand:Obviously I will be in touch or my representatives will be in touch, we will be seeking to fix a date for continuation as soon as everybody has had time to consider the matters.
Dr. T. Brain:Yes. Just an observation of practicality about that. I am sure you are very well aware, given the high office that you hold, that being Chief Constable of a force in England and Wales is a busy job and I do not have the luxury of a clear diary, I think, between now and the end of June, but we will set that to one side. I will do my utmost endeavour to make time available and we have been very fortunate today to get me in and out in a day. In the event of that not proving possible, I would hope that we perhaps can make conference either phone or better still video facilities available. That will enable me to represent Mr. Power remotely. I in no way view that as a satisfactory arrangement but I think it just may be the best we can do in the circumstances and certainly I would not want to delay consideration of the continued suspension just simply to find the date that we could clear in the diary. Of course, if we can clear the date we know it is at least feasible for me to fly in and out in a day.
Senator B.I. Le Marquand:
Senator B.I. Le Marquand:
I have not had access to a mass of information, in fact.
Dr. T. Brain:
No, and nor would we, I think, feel that that is relevant to this morning’s and this afternoon’s proceedings, because we are talking about an administrative review of suspension, whether that suspension should be continued, in our view whether it was lawful and appropriate in the first place, but whatever our view of that is we have reached a position now of whether that suspension should be continued and we do not want to get into, any of us I think, trying aspects of the case properly reserved for other parts of the procedure.
Senator B.I. Le Marquand:
Yes, okay, I am happy with that.
Dr. T. Brain:
So I would like to just, if I may, take a couple of minutes with Graham and then we will come back and determine from our perspective the next steps. So we will be a few moments.
ADJOURNMENT
Dr. T. Brain:First of all, thank you very much for your very full explanation as to why you have come to the conclusion that you have and, secondly, thank you for the offer of further documentation, subject to the steps and processes that we discussed earlier. I am very grateful for that. Having said that, while thanking you for your very full disclosure of your findings, I am sure it will come as no surprise to you that we still disagree with them and they may be subject to further process, but we are not going to make further representations about that today.
Senator B.I. Le Marquand:I accept that. Part of the process that I have been doing is trying to set things out very clearly and carefully should you wish to judicially review the matters. It assists the court and is part of the reason for the tape recording.
Dr. T. Brain:Thank you. In a sense of mutual exchange of documentation, we did say that we will be considering what other documents may be helpful for your deliberations, but I think there is some documentation that you should be aware of in the short term and may be of help to you in that time, and that is referred to on page 3 of Mr. Power’s letter of 12th February and it is the penultimate paragraph that commences: “You might wish ...” I will just wait for you to have that paragraph in front of you, page 3, the last but one paragraph: “You might wish ...” I will read it anyway: “You might wish to be satisfied that appropriate steps were taken to address the skill gap at the relevant time and in this respect you may wish to consider the role of senior experts
recommended by the Association of Chief Police Officers who provided their consultancy service for the investigation and produced detailed reports and advice. My recollection is that these reports contain positive comment on the extent to which the recommended actions were being followed. I do not recall if the reports covered the extent to which these experts gave direct briefings to Ministers but if this is doubted I am sure that those in office at the time will recall that this happened on a regular basis.” The point is that this is not the report or briefing that triggered the events of 12th November. These are other reports by A.C.P.O. (Association of Chief Police Officers) experts and the chief of which was André Baker who heads the A.C.P.O. Homicide Working Group and we would commend your attention to those reports. We think there are at least 3, there may be more, and I am afraid we are not in a position to be specific on that but I am sure some inquiries with States of Jersey Police will clarify that matter. I think we have just 2 more observations to make for today and, as it were, for the record. The first is that Mr. Power has now been suspended for 3 months and, to put it simply, nothing has happened. This is the first move that we have seen in respect of the investigation. We are grateful as I said right at the start of this proceedings, that you, Minister, have initiated the review process. We understand your desire that you are fully briefed and advised and that is not subject to any criticism from us, but what is subject to a great deal of concern is that Mr. Power has been suspended for 3 months and that there has been no activity in respect to providing him with further notice of the detailed concerns with respect to his conduct or the opportunity for him to clear his name. The second point is that in respect of the continued suspension - and we leave this as a hanging indent for further consideration - the burden of proof for continued suspension rests with the suspending authority. Now we will take the opportunity to make further submissions. There were submissions that we could have made today in respect to continuing the suspension but you have helpfully indicated that those submissions will be aided by the further documentation that you have decided to make available to us and obviously we would want to give those documents full consideration before finalising our submissions. So, in essence, we are disappointed that we cannot resolve the matter of suspension today but we are grateful that this matter has been given a very full consideration by yourself and I hope you will view the submissions that we have made to be helpful in that detailed consideration, but we now do need to take time to look at the further documentation and submit our final views on the validity of
continuing suspension after considering those documents.
Senator B.I. Le Marquand:Okay, that is fine. Thank you very much. I think that is probably as far as we can go today.
Dr. T. Brain:I think it is, Minister.
Senator B.I. Le Marquand:Obviously I will be in touch or my representatives will be in touch, we will be seeking to fix a date for continuation as soon as everybody has had time to consider the matters.
Dr. T. Brain:Yes. Just an observation of practicality about that. I am sure you are very well aware, given the high office that you hold, that being Chief Constable of a force in England and Wales is a busy job and I do not have the luxury of a clear diary, I think, between now and the end of June, but we will set that to one side. I will do my utmost endeavour to make time available and we have been very fortunate today to get me in and out in a day. In the event of that not proving possible, I would hope that we perhaps can make conference either phone or better still video facilities available. That will enable me to represent Mr. Power remotely. I in no way view that as a satisfactory arrangement but I think it just may be the best we can do in the circumstances and certainly I would not want to delay consideration of the continued suspension just simply to find the date that we could clear in the diary. Of course, if we can clear the date we know it is at least feasible for me to fly in and out in a day.
Senator B.I. Le Marquand:
My situation is that after 2 months which were absolutely manic coming in as a new politician, although very experienced in the public sector, a new Minister at the same time as under our very interesting Jersey political system we do the strategic plan for the next 3 years, the same time as we are learning our own departments, but things are starting to clear, hence I was able to offer 2 days, in fact I had 2 days in the week before, so I will make myself available at whatever dates suit.
Dr. T. Brain:I am sure we can work around it, I notice that there is a conference phone in front of us which is I think we are halfway there, but I think if we can have video conferencing that would be preferable.
Senator B.I. Le Marquand:I think somebody has those provisions because it is something that has happened with the Court of Appeal judges, they have delivered judgments. I think the Judicial Greffe may have.
Mr. M. Pinel:Yes, I have done a video conference here in the States, but I will check on that.
Dr. T. Brain:That would be our first preference because obviously it is handy to be able to do as we have just done, just move out for 5 minutes and chat and all of those sorts of things, but as I say the object of the exercise is not to cause a delay for you or Mr. Power.
Senator B.I. Le Marquand:Yes. In terms of the press they will be pursuing me, and no doubt Mr. Power, and I will simply say that the hearing started today has been adjourned on to another day.
Dr. T. Brain:That is all we will say. That is all we will say, and I have already indicated, because the B.B.C. (British Broadcasting Corporation) did ask me for a statement, and I said that we would only consider a statement in the light of the outcome of today. We do not have an outcome after today and, while I appreciate you have made your views clear on the first part of this, I do not view that ... this is a continuing process, not a 2-part process.
Senator B.I. Le Marquand:Absolutely. It will not affect the technical issues anyway.
Dr. T. Brain:
No, so we will all be saying the same thing.
Senator B.I. Le Marquand:Thank you very much.
Dr. T. Brain:Thank you.(END)
Regular readers will be aware that we published these transcripts back in March 2010 and it is a damming indictment on Ian Le Marquand and the entire Jersey administration that they are as relevant today as they were back then.
For the benefit of the current Police Chief, Mike Bowron, you can't say you haven't been warned.
Dr. T. Brain:I am sure we can work around it, I notice that there is a conference phone in front of us which is I think we are halfway there, but I think if we can have video conferencing that would be preferable.
Senator B.I. Le Marquand:I think somebody has those provisions because it is something that has happened with the Court of Appeal judges, they have delivered judgments. I think the Judicial Greffe may have.
Mr. M. Pinel:Yes, I have done a video conference here in the States, but I will check on that.
Dr. T. Brain:That would be our first preference because obviously it is handy to be able to do as we have just done, just move out for 5 minutes and chat and all of those sorts of things, but as I say the object of the exercise is not to cause a delay for you or Mr. Power.
Senator B.I. Le Marquand:Yes. In terms of the press they will be pursuing me, and no doubt Mr. Power, and I will simply say that the hearing started today has been adjourned on to another day.
Dr. T. Brain:That is all we will say. That is all we will say, and I have already indicated, because the B.B.C. (British Broadcasting Corporation) did ask me for a statement, and I said that we would only consider a statement in the light of the outcome of today. We do not have an outcome after today and, while I appreciate you have made your views clear on the first part of this, I do not view that ... this is a continuing process, not a 2-part process.
Senator B.I. Le Marquand:Absolutely. It will not affect the technical issues anyway.
Dr. T. Brain:
No, so we will all be saying the same thing.
Senator B.I. Le Marquand:Thank you very much.
Dr. T. Brain:Thank you.(END)
Regular readers will be aware that we published these transcripts back in March 2010 and it is a damming indictment on Ian Le Marquand and the entire Jersey administration that they are as relevant today as they were back then.
For the benefit of the current Police Chief, Mike Bowron, you can't say you haven't been warned.
.jpg)
Le Marquand keeps referencing a letter from Mr Walker, is that a typo and it is Mr Warcup or did I miss a bit when reading through?
ReplyDeleteYes you missed this bit.
ReplyDelete“Dr. T. Brain is the former Police Chief's representative at this hearing, and the name "Walker" that is in the transcript should read "Warcup."
In fairness it is a long, and disturbing, read so easily missed/forgotten.
Thank you
ReplyDeleteSenator Ian Le Marquand:
ReplyDeleteI am not going to look at the original circumstances. That is my decision on that.
So Ian Le Marquand flatly refused to look at the original suspension of Graham Power QPM conducted by Andrew Lewis. Wonder WHY?
Le Marquand was adamant he was going nowhere near the initial suspension by Lewis.
ReplyDeleteDr. T. Brain:
I will have an observation to make around the use of language of 12th November. I would like to put that submission in at the appropriate place in the way you are conducting matters now. I would not want to take you off on another direction, but if I can just give you an indication of what that would be and then you can tell me whether it is right to raise it now or later, and that is the use of the term “consider your position”. After what appears to have been a 20-30 minute interview, Mr. Power was given the opportunity to consider his position. It is our understanding that this may be interpreted as in some way suggesting that he had the opportunity to respond to the matters that had been raised. I think in fairness an hour to do that is wholly inadequate in any circumstances, but particularly not having full details and not being given the opportunity to consult with a representative. The observation that I have to make is the use of the term “consider your position” is a well-understood euphemism for being asked to resign. That is the observation about the use of that language that I would want to make. I am more than happy to develop that in more detail now, but I will want to make an observation about that before we conclude.
Senator B.I. Le Marquand:
I am not sure we can go down that route because that is back into the area which right at the outset I indicated I was not going to look at.
Dr. T. Brain:
Well, apart from the fact, Minister, that it gave Mr. Power no room for manoeuvre to respond. He has been told to take it or leave it.
Senator B.I. Le Marquand:
I understand well Mr. Power’s concerns in relation to the initial procedure, and they are well documented in the judicial review document, but, as I say, that is not an area that I want to look at today.
Ian Le Marquand says this:
ReplyDelete"but, as I say, that is not an area that I want to look at today."
You know, I seriously think he actually believed that the issues the defence team wished to raise, were his to pick and choose.
Observing the many different flounderings of Le Marquand - a man plainly out of his depth and drowning - its seems he did think that he had the power to decide which arguments the defence team may advance.
Extraordinary.
"Not an area I want to look at".
Couldn't make it up.
What a pathetic little man.
Stuart
Stuart.
ReplyDeleteYou said.
"You know, I seriously think he actually believed that the issues the defence team wished to raise, were his to pick and choose."
THEY WERE!! Although it's hard to think of any other western "democracy" where this could be the case!.........."Jersey Justice" not to be confused with "justice"
"because the Home Affairs Minister is a corporation sole"
ReplyDeleteDid you note that Ian/Cyril?
Holy colliding conflations!
ReplyDeleteWhere in all the world would this stand up to any impartial scrutiny?
The fear of public blog exposure of any relevant documentation sure is rather palpable from ILM's statements. What silly and pompous words he utters. He comes across as a man who greatly fears being disliked, so he must have been much more afraid of exclusion by his masters than exposure by published evidence.
He gambled and lost. The price will be severe. The perceived value of his professionalism and honour will be nothing.
You should never fear that blogging in Jersey is not having a supreme effect.
Dr. Brain laid out precisely why Graham Power was suspended in this statement, "Of great relevancy to the decision that you are seeking to make today, Mr. Power is an officer of unquestioned personal integrity."
ReplyDeleteIntegrity is simply unaffordable, untenable and unacceptable in a Jersey Chief Of Police.
"Walker" - "Warcup" - same difference, really.
ReplyDeleteIt may as well have been referring to Walker.
After all, it was Walker's influence that Warcup was acting under. That and Bailhache, of course.
Stuart
This may be a dumb question, how can you review anything without looking at issues involved in what you are reviewing?
ReplyDeleteIs that the ?
Comment @ 22:31, "This may be a dumb question, how can you review anything without looking at issues involved in what you are reviewing?
ReplyDeleteIs that the ?"
That's not a dumb question. Le Marquand just keeps changing his official version of what the question and answers were supposed to be. If it has to do with Operation Rectangle or Graham Power's suspension, there have been no credible answers yet. It might be impossible now for his cronies to defend him since they can't know which version is working out best for them any more.
"Of course, regular readers will be aware, that Senator Le Marquand has since been on a "Kangaroo Court Roadshow" (with the help of Jersey's State Media)."
ReplyDeleteHERE
Senator B.I. Le Marquand:
ReplyDeleteI have to say it was not my intention to do that and I am sorry if the letter did not make it clear. My intention today is, and always has been, to conduct a review of the issue as to whether Mr. Power should continue to be suspended and not to conduct a review as to whether or not procedurally he was properly suspended in November.
WHY NOT???????
In so many ways, discussing the tangled web of Ian Le Marquand's absurdities and the puppeteering by those who were "advising" him, is yesterday's news.
ReplyDeleteThe current question - the key question - is 'why has London permitted this to happen, and happen without intervention to restore the rule of law?'
After all, London has intervened previously when the Jersey oligarchy was acting unlawfully and placing the UK in breach of the ECHR. For example, rightly intervening in the late 1980s when Jersey law discriminated against gay men.
Likewise, London intervened to remove the then Deputy Bailiff from Office in 1992, on the grounds that his inability to produce judgements in a timely manner was denying people their ECHR Article 6 rights to a fair trial.
Not to trivialise either of those two issues, but the current situation is far, far worse.
It is an evidenced and overt collapse in the rule of law, freely functioning democracy, and the proper administration of justice.
The question now, is 'why the silence and inaction of London?'
Fascinatingly, there have been some recent revelations in the UK, about senior Whitehall civil servants - (and senior BBC staff, spookily enough) being able to take advantage of various tax-dodging methods and facilities.
We can't help but wonder how many of them use Jersey's off-shore apparatus - and who could be potentially very - err - embarrassed - if the Jersey oligarhcy got sufficiently displeased with them as to see that their tax-dodge details leaked?
Stuart.
The British Government's reluctance to step in and restore the rule of law in Jersey is extremely curious.
ReplyDeleteI watched a documentary a couple of weeks back where they stepped in to restore the rule of law in the Turks and Caicos Islands.The puzzling thing is, after watching the documentary, I was left with the impression that in comparison to what's been allowed to go on over here the Turks and Caicos stuff appeared just petty misdemeanours........IMO
Under whos instruction would London step in and act? are they even aware of the situation.
ReplyDeleteIt is an evidenced and overt collapse in the rule of law, freely functioning democracy, and the proper administration of justice.
'We can't help but wonder how many of them use Jersey's off-shore apparatus - and who could be potentially very - err - embarrassed - if the Jersey oligarhcy got sufficiently displeased with them as to see that their tax-dodge details leaked?'
ReplyDeleteI'm afraid there is no suggestion of offshore involvement n any of the cases. Its based upon employees taking benefits through self employment contracts, and ths avoiding (legally,if not morally) conventional employment taxation.
Facts, not spin please. Lets Leave that to others
A reader says:
ReplyDelete"Under whose instruction would London step in and act? are they even aware of the situation."
The relevant authorities in London do not need "instruction" to act.
The Crown - through the Office of Justice Secretary - has a legal and constitutional duty to protect the rule of law, good governance, and the proper administration of justice in the Crown Dependencies.
They have that responsibility - and the concomitant powers - as confirmed in the Kilbrandon Commission report of 1973. Further - the London authorities have shown that that is the case themselves, by intervening on certain occasions when they have chosen to do so.
That they have the responsibility, and the power - and will, on occasion, use that power - is not disputable.
The real issue is that London's oversight role has long-since been captured by the Jersey oligarhcy and perverted to the function of protecting the Jersey oligarchy from the concerns of ordinary islanders - hence the highly selective and discriminatory manner in which London picks and chooses its moments of intervention.
To see the "capture" at work, one need only consider the fact that the Office of Lieutenant Governor - supposedly London's 'eyes & ears' here - is in fact funded by Jersey. Indeed, former Lieutenant Governors are permitted to take up highly lucrative roles with Jersey-based oligarchs once their term of Office has ended. For example, General Sir Michael Wilkes now works for Heritage Oil, the outfit of tax-exile Tony Buckingham.
Consider the fact that the former Lieutenant Governor, Andrew Ridgway, was instrumental in supporting and lobbying London on behalf of the Jersey oligarchy - and even - quite extraordinarily - gave a partisan speech supporting the criminal cover-up and attacking me, in the States chamber on his last day in Office.
That is why London continues to fail in its legal obligations to ensure the rule of law in Jersey.
The entire reporting and oversight apparatus has been captured.
Stuart
Realistically, in the real world. How would, the likes of F Walker & T Le Sueur....
ReplyDeleteGet OBEs?!
Realistically in the real world, how could P Bailhache have been possibly Knighted?!
ReplyDeletehttp://thejerseyway.blogspot.com/2011/06/lieutenant-general-sir-andrew-ridgway.html
ReplyDeleteThis is the speech from Lieutenant Ridgway
rs
A reader says:
ReplyDelete“I'm afraid there is no suggestion of offshore involvement in any of the cases. It’s based upon employees taking benefits through self employment contracts, and this avoiding (legally, if not morally) conventional employment taxation.
Facts, not spin please. Lets Leave that to others.”
A curiously aggressive comment.
A raw nerve touched, perhaps?
My original comment did not say that the use of Jersey based off-shore facilities was illegal. But there are, of course, many other reasons why senior civil servants and BBC operatives might prefer to keep their use of such facilities secret. For example, concealing the true scale of their income and wealth from spouses. (A not uncommon motive.)
Further – many employees in what we might regard as ‘sensitive’ jobs that require a degree of neutrality – Whitehall civil servants and BBC news and editorial staff for example – might be ‘employed’ in the usual sense, but in addition to their salary and pensions – might have additional money-streams – for example “freelance work” – or additional income – perhaps very substantial income – paid to them for “consultancy” work.
And, of course, if BBC staff and Whitehall civil servants have parallel financial existences as “freelancers” or “consultants”, then the exposure of them enjoying that compromising wealth-stream could be profoundly destructive of their credibility – and that of their ‘main’ employer.
Especially if their main employers don’t know about it.
As in the case of two or three BBC Jersey staffers. (At least one of who has ‘worked’ – de facto – for the Guiton Group for years.)
In fact, in some countries, to have lucrative side-lines of work when your main job is supposed to be one of public importance, is very much frowned upon. Indeed, many people might regard it as illegal and corrupting. Which is another reason why those who earn money in such ways may very well take full advantage of secrecy-jurisdictions such as Jersey; to keep the fact that they are compromised by what many might regard as bribery, concealed from their employers.
And the above observations very much apply even if we assume the use of Jersey off-shore facilities is not unlawful from the taxation perspective. Of course, it is entirely feasible to make use of tax-efficiency methods and off-shore in ways which are legal. But – on the other hand – it’s also possible to use such facilities in ways which might not be entirely legal. For example, concealing the true scope and scale of one’s real financial income from the tax-man in London.
No matter which way you cut it – having parallel financial lives – and concealing such wealth-streams via an off-shore jurisdiction such as Jersey – has the plain and obvious potential to be catastrophically compromising to people working in UK media, politics or civil service.
And let’s face it – there has to be some rational explanation for the bizarre and otherwise inexplicable protections given to Jersey’s criminal oligarchy.
Stuart
Thursdays meeting at St Clements Parish Hall on the 21st of February was very informative with Deputy Le Heriser explaining he’s amendments to the voters of the Parish, along with others who chose to be there, giving as to what the electoral reform commission entails.
ReplyDeleteIt does not bode well for the Democracy of this Island even States Members at the meeting admitted it was not their right as Politicians to sit in or on any Independent Commission on electoral reforms.
Public rights could be in danger of being compromised, this Independent Commission as D Wimberly laid out was not intended to be watered down with any politician being a part of the process or with the possibility of Senator Philip Bailache or any other States member should sit as Chairman.
This could be a possible risk to Democracy as we know it, and possibly yet again a waste of Taxpayers money.
As this is an opinion. It would be interesting for others to have a chance to also share their views and vote accordingly at the Town hall on Wednesday 29th Feb at 7pm.
Very well EXPLAINED
ReplyDeleteSTATEMENT TO BE MADE BY THE MINISTER FOR HOME AFFAIRS ON
ReplyDeleteTUESDAY 10th MARCH 2009
I wish to inform the Assembly that following the “in camera debate” which took place on 21st January, 2009, I
met with the Chief Officer of Police and with his representative, Dr. Timothy Brain on 13th February, 2009 and
5th March, 2009 for the purpose of reviewing the suspension of the Chief Officer of Police. During the review
process I considered submissions from Dr. Brain in relation to the procedure which I should follow, the
documents or other matters which I should consider, the criteria which I should apply in making my decision and
whether or not the Chief Officer of Police should continue to be suspended. I then proceeded to make detailed
decisions in relation to each of these issues with the outcome being that I decided that the suspension of the Chief
Officer of Police should continue pending the current investigation.
I also wish to inform the Assembly that my current information is that the current investigation will not be
completed before the end of June 2009. It is my intention to continue from to time to time to review the current
suspension but any such review will be based upon any relevant change of circumstances and will not be a further
general review.
End.
Is the above statement 10.3.2009 to the States assembly members misleading? The purpose being to review the suspension and consider the submissions made in that statement.
and yet as from the quote below shows this was not the intention of Mr. Le Marquand at the time.?
Mr. Le Marquand. ''My intention today is, and always has been, to conduct a review of the issue as to whether Mr. Power should continue to be suspended and not to conduct a review as to whether or not procedurally he was properly suspended in November.''
13.7.2009 Reply to Question from simon Crowcroft.
ReplyDeleteSenator B.I. Le Marquand:
That is not what I am saying at all. I am simply saying that we have not asked the police to investigate whether or not the police chief was properly suspended in the first place. That would be a total waste of public money.
No money wanting to be wasted on looking at original suspension. Yet happy to tag operation blast in the same time period to the child abuse investigation.
The Connétable of St. Helier:
The person to whom I was referring, the Head of States Human Resources, was closely involved in the decision and gave advice on a decision to originally suspend the Chief of Police of the States of Jersey Police. Is it not logical that that person should be interviewed as part of an inquiry?
Senator B.I. Le Marquand:
No. People are complaining that public money is being wasted on this. I have no wish to waste further public money on side issues.
http://www.statesassembly.gov.je/AssemblyQuestions/2009/Connetable%20of%20St.%20Helier%20to%20HA%20re%20suspension%20of%20Chief%20Officer.pdf
Ian Le Marquand, and his legal advisors (the Law Office) have wasted £millions trying to find something to suspend Graham Power for..............Long after he was suspended. Ian Le Marquand flatly refuses to look at the original suspension because he knows damn well it contradicted procedure and natural justice. It was nothing more than "Noble Cause Corruption."............IMO.
ReplyDeletehttp://ricosorda.blogspot.com/2012/02/operation-end-game-4.html
ReplyDeleteIm now looking at the establishments discrediting of ACPO
rs
NOBLE CAUSE CORRUPTION
ReplyDeleteReaders would be advised to watch this VIDEO to learn that what the establishment did to the former Police Chief, was not a "one off."....................."The Jersey Way."
ReplyDelete