Monday, 28 October 2013

Regulatory of Investigatory Powers Law. (RIPL)

Chief Police Officer Mike Bowron


Attorney General Tim Le Cocq


Bailiff Michael Birt


John Nutting QC



Readers may have been following the exchanges in the UK following the Wikileaks revelations regarding the extent to which security agencies are tapping into the communications of political figures and ordinary citizens.



   

It has been revealed that the phone of the German Chancellor Angela Merkel could have been tapped by the American National Security Agency (NSA) and might have been tapped for the last ten years as reported HERE. The British equivalent (GCHQ) also has many uncomfortable questions to answer.  If somebody as high risk as the German Chancellor can be bugged, we have to ask, how many not so powerful political dissidents and "independent" journalists, particularly in Jersey, are under surveillance?

So far the unfolding story may appear to be nothing to do with Jersey but according to some reliable sources who have been in touch with "The Voice" then this is far from the case. However, to begin with we will take a brief look at the law in Jersey and just who is in control. 

In future postings we will look at some of the alleged abuses and ask whether there is a need for a new look at how these things are managed in the Island. Unlike the local State Media the Citizen journalists from "The Voice" will be asking some hard questions about those in power. For the benefit of anyone from the State Media who happens to be reading, that is what proper journalists do but is left to Bloggers (Jersey's only independent media). But first, in order to bring readers up to date, we set out in this Blog Posting the current situation as we understand it, in order that readers can be prepared for the revelations which are to follow.



 THE REGULATION OF INVESTIGATORY POWERS IN JERSEY.



A contribution by a “Friend of the Voice” 



As a friend and regular reader of the “Voice” I have been asked to produce a “plain person’s guide” to the laws governing the Regulation of Investigatory Powers in Jersey. I am told that this is because of some of the continuing fallout from the Curtis Warren case and also because of some apparent controversy relating to the management of these powers in the Island.

I am not a lawyer, a police officer, or a customs officer, but I do have some indirect knowledge of these laws and how they operate. A copy of the Regulation of Investigatory Powers Law 2005 (RIPL) and the accompanying Codes of Practice are available on the Jersey Legal Information Board (JLIB) website. These are some useful documents for anyone interested in exploring the subject in greater detail than I will attempt, although it is fair to warn that they are not an easy read. I have attempted to study these documents and have been helped by the comments of friendly contacts with recent legal and operational experience in dealing with this law. I hope that I have correctly summarised the contributions which I have received from others. The challenge has been to attempt to “boil down” a complex law into something comprehensible to normal everyday folk. I hope that I have had some success. Any mistakes are mine and not those of the patient and helpful people who have assisted me with this task.

It might be useful to begin with setting out what I think this law is about. It is basically about the powers of various state agencies to intrude into the privacy of citizens by such actions as placing them under surveillance, tracking their movements, bugging their cars, their phones, their homes or targeting them with hidden cameras. The law sets out who can do this, what the grounds are for doing it, who can give authority or issue a warrant for such actions, and how evidence from this type of activity can be admitted as evidence in a Court. There is an additional law which provides more information on the interception of telephone and other communications. This is the Interception of Communications Law 1993 which, for those with a serious interest, can be found from the link above (JLIB). Although I have taken information from both laws I will not deal with any of the laws in detail as I have been told that what is required is a simple explanation of how the Regulation of Investigatory Powers works in most cases in most circumstances.

Article 11 of RIPL sets out who can apply for a warrant under the law to install bugging devices and similar activity set out in the law. The people who can make an application in Jersey are: The Chief of Police, the Head of Customs and Immigration, the Director General of the UK Security Service (MI5), The Chief of the UK Secret intelligence Service (MI6), The Director of GCHQ, and the Head of Intelligence at the UK Ministry of Defence. I am told that in Jersey the Chief of Police and the Head of Customs make periodic use of the Law. I do not know what use MI5, MI6 or the Military make of the law and I am not likely to find out. Sorry about that. I have no information to offer on those organisations. I just know that Jersey lawmakers have included them in the law.

It might be useful to the reader to set out two opposing views on the effect of the laws referred to above. One view is that they give extensive powers to state agencies to “snoop” on the public. Another view is that they in fact restrict intrusion by laying down a set of rules, prior to which there were no clear constraints on this type of activity. Whichever view is taken these laws are the ones which apply in Jersey now.

It might also be useful to make the point that this article is confined to high level intrusion into the privacy of a suspect or suspects, which would involve things such as the installation of hidden bugging devices or the monitoring of phone calls. These things are subject to specific controls, a prescribed application process, and a requirement for the issue of a warrant before any action is taken. What is described as ”non intrusive” activity such as surveillance in a street or public place can normally be authorised by a senior officer in the organisation concerned, subject to relevant rules and guidelines. For those with a keen interest, the Code gives some details of how “non intrusive” surveillance and similar activity is authorised and managed.

I have set out above the details of who can make an application for a warrant under the law. The grounds for an application are also set out in the legislation. For practical purposes the grounds which matter are National Security and Serious Crime. RIPL defines “Serious Crime” in detail. The short definition is that the term “Serious Crime” is applied to offences for which a person aged 21 or over with no previous convictions could expect to receive a prison sentence of 3 years or more. I am told that in Jersey nearly all of the warrants issued under this provision relate to drug trafficking and drug dealing.

I have asked contacts how this process works in practice and this is what I have been told. Apparently, when the Police or Customs have information about activity which could amount to a “Serious Crime” the front line officers involved assess whether some form of intrusive activity, such as bugging or phone monitoring, is necessary and justified. If they think it is then they submit a detailed case to the relevant Chief Officer asking him to use his powers to make a formal application to the Attorney General for a warrant to allow the intrusive activity to take place. My contacts in the UK tell me that in the UK this was once done by means of a detailed written application but is now more commonly done by means of a specially designed computer system which records all of the information and the decisions taken in a database which is not capable of subsequent amendment. This means that decisions cannot be reviewed with the benefit of hindsight. I do not know what method is used in dealing with these matters in Jersey.

On the subject of applying to the Jersey Attorney General for a warrant, my UK contacts expressed some surprise at this part of the Jersey process. Procedures in the UK vary between the different national jurisdictions (for example Northern Ireland is different to Scotland and so forth) but it is usual for applications to be finally considered and a warrant issued by a judge or a government minister, both of whom would be expected to be completely independent of any investigation or prosecution which might follow. UK contacts see the position in Jersey as conflicted in that a warrant is granted by the Attorney General who is also the head of the prosecution service and legal advisor to both Police and Customs. The Attorney General would therefore be issuing a warrant in respect of a case in which he may have some direct involvement, either at the time or in the future. One UK observer with some knowledge of the Warren case saw this conflict as being a key difficulty with that investigation. Regular readers of this website will be aware that conflicts of interest are not exactly unknown in the Jersey legal system. Keen collectors may nevertheless wish to add this example to their list.

I am aware that some readers would like to know more specific details about how the process of scrutiny of applications by the Chief Officers of Police and Customs operates in Jersey. I have made my enquiries and have not been able to find out anything beyond that which I have set out above. That said, the law is clear enough. An application to the Attorney General for a warrant can only be made by the Chief Officer (or his Deputy in his absence) and no other. On my reading of the law the role of the Chief Officer in scrutinising applications would appear to be one of the key safeguards in the legislation. I have spoken to a contact in the UK whose role once involved attempting to persuade Chief Officers of Police to make applications for warrants. He told me that the procedure involved operational officers putting together a written case for a warrant, followed by a meeting with a Chief Officer (usually an Assistant Chief Constable) who would ask questions. I was told that this was sometimes a difficult process, with Chief Officers often rejecting applications or sending them back for more evidence or information. This happened to such an extent that my contact began to take a cynical view of this process. He suspected that Chief Officers were sometimes asking for more information for no better reason than to create an “audit trail” which purported to demonstrate how thoroughly they were scrutinising applications thereby protecting themselves from any allegation that they were taking their duties lightly. That is all I can find out on this subject.

Once a warrant is issued by the Jersey Attorney General then the relevant intrusive action can take place. The legislation and the code set out rules regarding the need to review progress and ensure that the original grounds are still valid.

The point of obtaining a warrant from the Attorney General is, in most cases, to ensure that evidence and information is lawfully obtained and can be used in Court. But it is a bit more complicated than that. Some material can be used as evidence and some can only be used as intelligence. The difference between evidence and intelligence is that evidence can be used in Court but intelligence is used to assist in the search for evidence. The monitoring of telephone calls is an example of this difference. Articles 20 and 21 of RIPL appear to deal with this, albeit in a way which is near impenetrable to a non-legal mind. I have been told that the practical effect of this part of the law is that the transcript of a monitored telephone conversation cannot be used as evidence in a Court. This is consistent with the law in the UK. But it can be used as intelligence. For example if Customs monitor a telephone call in which suspects talk of a planned drug importation then they can use the information from the call to intercept the importation, but cannot use the contents of the call as evidence. The same does not apply to such things as bugging devices. Anything relevant which such devices pick up can be used in evidence, including, interestingly, the voice of someone speaking into a nearby telephone. From what I have read, something of this kind appeared to have occurred during the Warren case.

This does not mean that evidence obtained outside the rules set out in the Law and the Code cannot be used in Court. It just means that if evidence is obtained within the rules then it would be very hard for a Court to exclude it. If evidence is obtained outside the rules then the Court has to decide whether to admit the evidence or not, depending on the overall circumstances of the case. Nothing in the Laws themselves appears to exclude a Court from admitting evidence gathered outside the terms of the Law and the Code.

I have been asked to write something about the role of the Commissioner in overseeing the working of the law. Details of his role can be found in Article 9 of the Interception of Communications Law and elsewhere. The Commissioner for the Interception of Communications and for RIPL in Jersey is a UK Judge. Currently it is Sir John Nutting QC who is an Appeal Court Judge. The Commissioner has sweeping powers to visit the Island and scrutinise all records and activity in relation to RIPL. Everyone involved is required to give him full access and cooperation. In plain terms his role is to ensure that all parties are playing by the rules and to make recommendations for improvement. He produces an annual report to the States (Jersey’s Parliament.) His reports are published and a recent report is to be found HERE. The law allows him to exclude from his public report anything which might undermine justice. From studying the Commissioners reports this exclusion appears to be given a wide interpretation to include breaches of the prescribed procedures by law enforcement agencies. Presumably this is done on the grounds that if too much information was released on the workings of those agencies such information might be of benefit to criminal organisations. So if there was any significant concern about the way that agencies in Jersey were conducting themselves with regard to intrusive activity then this would not be included in the report to the States. In such circumstances the Commissioner makes a separate confidential report to the Bailiff. In Jersey the Bailiff is a non-elected official who is Speaker in the States and the Senior Judge in Jersey’s Royal Court. At least two contentious issues appear to arise from this arrangement. The first is that none of the agencies which conduct intrusive activity in Jersey are accountable to the Bailiff. It is not clear what if anything the Bailiff is able to do about any reported breach of the law or who is able to hold him to account for his response to any critical comment which the Commissioner might make. Readers may wish to consider whether this is an appropriate arrangement in an alleged democracy. The second point is that there would appear to be at least a theoretical possibility that the Bailiff would be shown intelligence material relating to a case which could later appear before him in his capacity as a judge. This raises the issue of yet another potential conflict of interest.

I hope this short summary is useful in assisting interested readers in understanding the basic features of the Regulation of Investigatory Powers in Jersey.(END)

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The many conflicted hats of the Bailiff and Attorney General rear their heads once more and begs the question who holds the real power in Jersey? This, in our opinion, further demonstrates it is the Law Offices and NOT the "Democratically" elected members of parliament.

Readers might think that the Law (RIPL) is being administered correctly in Jersey and that loopholes in parts of the Law are not being exploited by those in power?..........................Stay tuned.




27 comments:

  1. Very alarming state of affairs which won't be touched by the state media. I very much look forward to future blogs on this subject though not sure Bowron and co will be quite as enthusiastic.

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  2. Those with a relatively long memory will recall the Attorney General dodging questions in 2009 from Deputy Trevor Pitman relating to this SUBJECT

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  3. I think you just thrive off make believe stories that never get any further than a blog.

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    1. You are obviously easily 'led by the nose', if commonsense was to 'hit you in the face' you would think it was an alien.

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  4. RIPL aimed at citizens and "citizen's media"

    R.I.P. Liberty

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  5. Anonymous @ 11:06 "I think you just thrive off make believe stories that never get any further than a blog."

    Like the Jimmy savile revalations which were mentioned on the blogs for months before the news broke

    Oh look! back in 2008:

    http://stuartsyvret.blogspot.com/2008/07/you-dirty-old-man.html

    It took a few years for errrrr.... "real journalists" to catch up :

    http://www.express.co.uk/news/uk/352861/Steptoe-and-Son-s-Wilfrid-Brambell-latest-star-to-be-accused-of-child-sex-abuse

    http://www.telegraph.co.uk/news/uknews/crime/jimmy-savile/9616121/Jimmy-Savile-Steptoe-and-Son-actor-Wilfrid-Brambell-abused-boys-in-Jersey-claims-whistleblower.html

    Oh yes Savile was "Innocent" because he was protected until after he died

    Has the sheer number of real scandals broken by Jersey Bloggers really escaped you?
    Anon, You are either very sick or very stupid.

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    1. Wilfred Bramble has only been dead for almost 30 years and the Savile claims were made long before any Jersey blogger got on the band wagon, and you call this exclusive news?!

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    2. I must have missed it. Where in this posting does it say this is "exclusive news?"

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  6. Congratulations on getting such a clear and well written summary.

    Looking forward to the posts on how this is applied in individual cases.

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  7. At last. After waiting all weekend and being sucked into the Msm storm hype it tuns up on this excellent posting. The Jersey media couldn't get past VPL let alone RIPL.

    WELL DONE VFC

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  8. This must be consumed and understood.

    "On the subject of applying to the Jersey Attorney General for a warrant, my UK contacts expressed some surprise at this part of the Jersey process. Procedures in the UK vary between the different national jurisdictions (for example Northern Ireland is different to Scotland and so forth) but it is usual for applications to be finally considered and a warrant issued by a judge or a government minister, both of whom would be expected to be completely independent of any investigation or prosecution which might follow. UK contacts see the position in Jersey as conflicted in that a warrant is granted by the Attorney General who is also the head of the prosecution service and legal advisor to both Police and Customs. The Attorney General would therefore be issuing a warrant in respect of a case in which he may have some direct involvement, either at the time or in the future. One UK observer with some knowledge of the Warren case saw this conflict as being a key difficulty with that investigation. Regular readers of this website will be aware that conflicts of interest are not exactly unknown in the Jersey legal system. Keen collectors may nevertheless wish to add this example to their list."

    Bingo. How simple is that.

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  9. Wasn't Stuart Syvret bugged and followed by two cops during the Mick Gradwell era?

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  10. I and my former partner were bugged and followed for months.

    I even discovered the identity of the two "police officers" largely undertaking the activity - Mark Kane and Julia Jackson.

    In theory, those two - and Mick Gradwell - were in Jersey to continue the child-abuse investigations - and a certain other major criminal investigation.

    In reality - Gradwell, Kane and Jackson spent most of their time in Jersey "investigating" me - and "investigating" Lenny Harper.

    This was all discovered by me through 'sources' - so I made the obvious Article 6-necessary disclosure applications.

    What passes for a "judiciary" in Jersey - refused to order the disclosures.

    The real point of this is - of course - the UK authorities in London were fully aware of this corrupt and abusive oppression - and were wiling parties to it.

    That is the reality of just what human rights, and the rule of law actually mean to the British establishment.

    Zero.

    Stuart

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  11. 'In reality - Gradwell, Kane and Jackson spent most of their time in Jersey "investigating" me ..'

    This is pretty demonstrative of what people have been pointing out for many years, (And no doubt as his 'sources' have consistently confirmed to him) the most important person to Stuart in all events of recent years is Stuart.

    If it hasn't already, it will one day dawn upon the true victims of the terrible crimes committed here what Stuart's ultimate motivation was in involving himself in their plight. How much nowadays do we hear on his blog about the plight of the abuse survivors compared to the endless legal problems he brings upon himself ?

    He has used the suffering of others for his own ends, and is a disgrace.

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    1. I’m not sure that your argument stacks up, and at the same time conscious that there is a danger by publishing your comment this thread will be diverted from its topic (RIPL) and the possible misuse of it, and become a topic about Stuart.

      Firstly, you have “selectively” quoted Stuart with “spent most of their time in Jersey "investigating" me ..' You missed out the very next words which were “and "investigating" Lenny Harper.” So it wasn’t just about Stuart, but also the cop who lifted the lid off of Jersey’s “dirty secret(s) in that children were being abused, for decades, in State run “care” homes and the victims had noone they could turn to.

      Here’s the other thing I don’t get, and how I believe your argument doesn’t stack up. What, exactly, did Stuart ever have to gain by supporting Victims/survivors of Paedophilia/Child Abuse? It is because he attempted to speak out for them (some would argue) that The Powers That Be, and its State Media, set about destroying him. There are those that would argue the very reason he has all these legal battles is because Jersey has a corrupt, and politicised judiciary who are hell-bent in putting a lid on the Child Abuse cover-up and silencing anybody who seeks/exposes the truth.

      If, as your argument goes, Stuart was only doing this for himself then it wasn’t his smartest move was it? When he started speaking up for the survivors, to the best of my knowledge, he didn’t have a criminal record. Since speaking up, he has lost his Ministry, his seat, his relationship, and faced umpteen court cases leaving him with a criminal record to-boot! Not to mention secret, taxpayer funded, court cases.

      As mentioned above this thread is in danger of being hijacked (by you) to go on about Stuart Syvret, the very thing you accuse him of! Please keep to topic if you wish to have comments published and avoid any personal insults?

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    2. disgraceful, only an idiot could come up with that, S S is the best politician Jersey has had, he at least tried to get rid of civil servants who not up to the job, only for them to be reinstated by the then chief minister not a very good one, in fact his then chief officer took him for 500 grand, no sorry us for 500 grand.

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  12. I'm sorry, but you are the one who has decided to include Stuart's quote to illustrate your point, so his contribution seems to be fair to discuss ? Is this now not the case ? And if not, when would you like to discuss it ?

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    1. Stuart’s contribution was on topic, discussing bugging and (non) disclosures. If you wish to discuss “Stuart” why don’t you ask to meet him for a coffee and discuss until your heart’s content.

      In the meantime do you have an opinion of the contents in this paragraph (below) or ANYTHING in the main posting/subject ?

      "On the subject of applying to the Jersey Attorney General for a warrant, my UK contacts expressed some surprise at this part of the Jersey process. Procedures in the UK vary between the different national jurisdictions (for example Northern Ireland is different to Scotland and so forth) but it is usual for applications to be finally considered and a warrant issued by a judge or a government minister, both of whom would be expected to be completely independent of any investigation or prosecution which might follow. UK contacts see the position in Jersey as conflicted in that a warrant is granted by the Attorney General who is also the head of the prosecution service and legal advisor to both Police and Customs. The Attorney General would therefore be issuing a warrant in respect of a case in which he may have some direct involvement, either at the time or in the future. One UK observer with some knowledge of the Warren case saw this conflict as being a key difficulty with that investigation. Regular readers of this website will be aware that conflicts of interest are not exactly unknown in the Jersey legal system. Keen collectors may nevertheless wish to add this example to their list."

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  13. No system of scrutiny, no legal separation of powers, local lapdog media, vast hidden monetary resources...leaving only bloggers to balance the scales of justice in a surveillance state?

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    1. That pretty much sums it up! A lawless State with (because of?) a complicit mainstream media.

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  14. Rubbish....Transparency is heading OUR WAY

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  15. who appoints John nutting qc as a judge in jersey and who appoints him to oversee Ripl and his secret reports

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    1. I believe John Nutting QC is appointed by the Bailiff Michael Birt to act in his capacity as an appeal judge. Under who's authority he is acting in his RIPL role, and reports, is not that clear as yet but will endeavour to find out.

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    2. The unelected, all powerful, and untouchable Bailiff.

      43 Investigatory Powers Commissioner

      (1) The Bailiff shall appoint one of the ordinary judges of the Court of Appeal who is not the President of the Tribunal as the Investigatory Powers Commissioner to carry out the function described in this Article.

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    3. Thanks once again to the Voice for clarifying matters, which are a mystery to most of us. This time around you have explained the question of who appoints the Commissioner for RIPL. In light of this information I wonder if any of our elected representatives will have the courage to ask what is the remuneration for the post of Commissioner? What is the appointment procedure and does it comply with the guidelines of the Jersey Appointments Commission? And can we see a copy of the job description and the advertisement for the post? If we do not get any honest answers (which is probable) we might at least get some mild entertainment as the Legal Establishment reacts to the impudence of ordinary taxpaying folk asking it to account for its actions, not to mention its substantial cost.

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    4. Good, and very poignant, questions that all States Members should be asking on behalf of the electorate/taxpayer. However I believe a speed limit is proposed to be changed from 30mph to 20mph in a country lane that nobody has ever heard of or travelled on and questions surrounding 20mph/30mph will be a huge priority!



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  16. Abuse of power by those in authority! So what's new....
    shall you and your readers be burning Guy Fawkes this weekend? Better read www.tomgruchy.blogspot.com for a different perspective and ask your States Reps why Walter Raleigh - the former Royal Governor of Jersey - is considered a hero here and elsewhere although his "crimes" were greater and he ended his days on the block as a "traitor."

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